HUMAN RIGHTS AND LEGISLATION

WHO RESOURCE BOOK ON MENTAL HEALTH,

Stop exclusion, dare to care
World Health Organization
HUMAN RIGHTS AND LEGISLATION
WHO RESOURCE BOOK ON MENTAL HEALTH,
Stop exclusion, dare to care
World Health Organization 2005
All rights reserved. Publications of the World Health Organization can be obtained
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do not imply the expression of any opinion whatsoever on the part of the World
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Printed in China
WHO Library Cataloguing-in-Publication Data
WHO Resource Book on Mental Health, Human Rights and Legislation.
1. Mental health
2. Human rights - legislation
3. Human rights - standards
4. Health policy - legislation
5. International law
6. Guidelines
7. Developing countries I.World Health Organization.
ISBN 92 4 156282 X
(NLM classification: WM 34)
Technical information concerning this publication can be obtained from:
Dr Michelle Funk
Ms Natalie Drew
Mental Health Policy and Service Development Team
Department of Mental Health and Substance Dependence
Noncommunicable Diseases and Mental Health Cluster
World Health Organization
CH-1211, Geneva 27
Switzerland
Tel: +41 22 791 3855
Fax: +41 22 791 4160
E-mail: funkm@who.int
ii
Acknowledgments
The Resource Book on Mental Health, Human Rights and Legislation was produced under the
direction of Michelle Funk, Natalie Drew and Benedetto Saraceno, Department of Mental
Health and Substance Abuse, World Health Organization.
Writing team:
Principal writers: Melvyn Freeman (formerly Department of Health, Pretoria, South Africa) and
Soumitra Pathare (Ruby Hall Clinic, Pune, India).
Other writers: Natalie Drew (WHO/HQ), Michelle Funk (WHO/HQ), Benedetto Saraceno
(WHO/HQ).
Background documents and case examples
Julio Arboleda Florez (Department of Psychiatry, Queen's University, Ontario, Canada),
Josephine Cooper (Balmoral, New South Wales, Australia), Lance Gable (Georgetown
University Law Center, Center for the Law and the Public's Health, Washington DC, USA),
Lawrence Gostin (Johns Hopkins University, Washington DC, USA), John Gray (International
Association of Gerontology, Canada), HWANG Tae-Yeon (Department of Psychiatric
Rehabilitation and Community Mental Health, Yongin Mental Hospital, Republic of Korea),
Alberto Minoletti (Ministry of Health, Chile), Svetlana Polubinskaya (Institute of State and Law,
Russian Academy of Sciences, Moscow, Russian Federation), Eric Rosenthal (Mental
Disability Rights International, Washington DC, USA), Clarence Sundram (United States
District Court for the District of Columbia, Washington DC, USA), XIE Bin (Ministry of Health,
Beijing, China).
Editorial Committee
Jose Bertolote, (WHO/HQ), Jose Miguel Caldas de Almeida (WHO Regional Office for the
Americas (AMRO)), Vijay Chandra (WHO Regional Office for South-East Asia (SEARO)),
Philippe Chastonay (Facult de Mdecine Universit de Genve, Switzerland), Natalie Drew
(WHO/HQ), Melvyn Freeman (formerly Department of Health, Pretoria, South Africa), Michelle
Funk (WHO/HQ), Lawrence Gostin (Johns Hopkins University, Washington DC, USA), Helen
Herrman (formerly at WHO Western Pacific Regional Office (WPRO)), Michael Kirby (Judges'
Chambers in Canberra, High Court of Australia), Itzhak Levav (Policy and External Relations,
Mental Health Services, Ministry of Health, Jerusalem, Israel), Custodia Mandlhate (WHO
Regional Office for Africa (AFRO)), Ahmed Mohit (WHO Regional Office for the Eastern
Mediterranean (EMRO)), Helena Nygren-Krug (WHO/HQ), Genevieve Pinet (WHO/HQ), Usha
Ramanathan (Delhi, India), Wolfgang Rutz (WHO Regional Office for Europe (EURO)),
Benedetto Saraceno (WHO/HQ), Javier Vasquez (AMRO).
Administrative and Secretarial Support
Adeline Loo (WHO/HQ), Anne Yamada (WHO/HQ) and Razia Yaseen (WHO/HQ)
The WHO Resource Book on Mental Health, Human Rights and Legislation is included within
the programme of the Geneva International Academic Network (GIAN/RUIG).
iii
iv
Technical contribution and critiques
Beatrice Abrahams National Progressive Primary Health Care Network,
Kensington, South Africa
Adel Hamid Afana Training and Education Department, Gaza Community
Mental Health Programme, Gaza
Thrse A. Agossou Regional Office for Africa, World Health Organization,
Brazzaville, Congo
Bassam Al Ashhab Community Mental Health, Ministry of Health, Palestinian
Authority, West Bank
Ignacio Alvarez Inter-American Commission on Human Rights
Washington DC, USA
Ella Amir Alliance for the Mentally Ill Inc., Montreal, Quebec,
Canada
Paul S. Appelbaum Department or Psychiatry, University of Massachusetts
Medical School, Worcester, MA, USA
Julio Arboleda-Florez Department of Psychiatry, Queen's University, Kingston,
Ontario, Canada
Begone Ario European Federation of Associations of Families of
Mentally Ill Persons, Bilbao, Spain
Joseph Bediako Asare Ministry of Health, Accra, Ghana
Larry Ash Geneva, Switzerland
Jeannine Auger Ministry of Health and Social Services, Quebec, Canada
Florence Baingana Health, Nutrition, Population, The World Bank,
Washington DC, USA
Korine Balian Mdecins Sans Frontires, Amsterdam, Netherlands
Neville Barber Mental Health Review Board, West Perth, Australia
James Beck Department of Psychiatry, Cambridge Hospital,
Cambridge, MA, USA
Sylvia Bell New Zealand Human Rights Commission, Auckland,
New Zealand
Jerome Bickenbach Faculty of Law, Queen's University, Kingston, Ontario,
Canada
Louise Blanchette University of Montreal Certificate Programme in Mental
Health, Montreal, Canada
Susan Blyth Valkenberg Hospital, Department of Psychiatry and
Mental Health, University of Cape Town, South Africa
Richard J. Bonnie Schools of Law and Medicine, University of Virginia, VA,
USA
Nancy Breitenbach Inclusion International, Ferney-Voltaire, France
Celia Brown MindFreedom Support Coalition International, USA
Martin Brown Northern Centre for Mental Health, Durham,
United Kingdom
Anh Thu Bui Ministry of Health, Koror, Palau
Angela Caba Ministry of Health, Santo Domingo, Dominican Republic
Alexander M. Capron Ethics, Trade, Human Rights and Health Law, World
Health Organization, Geneva, Switzerland
Sylvia Caras People Who, Santa Cruz, CA, USA
Amnon Carmi World Association for Medical Law, Haifa, Israel
Claudina Cayetano Mental Health Program, Ministry of Health, Belmopan,
Belize
CHEN Yan Fang Shandong Provincial Center of Mental Health, Jinan,
China
v
CHUEH Chan College of Public Health, Taipei, China (Province of
Taiwan)
Dixon Chibanda University of Zimbabwe, Medical School, Harare,
Zimbabwe
Chantharavdy Choulamany Mahosot General Hospital, Vientiane, Lao Peoples
Democratic Republic
Hugo Cohen World Health Organization, Mexico
Josephine Cooper New South Wales, Australia
Ellen Corin Douglas Hospital Research Centre, Quebec, Canada
Christian Courtis Instituto Tecnolgico Autnomo de Mxico,
Departamento de Derecho, Mexico DF, Mexico
Jim Crowe World Federation for Schizophrenia and Allied Disorders,
Dunedin, New Zealand
Jan Czeslaw Czabala Institute of Psychiatry and Neurology, Warsaw, Poland
Araba Sefa Dedeh Clinical Psychology Unit, Department of Psychiatry,
University of Ghana Medical School, Accra, Ghana
Paolo Delvecchio United States Department of Health and Human Services,
Washington DC, USA
Nimesh Desai Department of Psychiatry, Institute of Human Behaviour
and Allied Sciences, Delhi, India
M. Parameshvara Deva Department of Psychiatry, SSB Hospital, Brunei
Darussalam
Amita Dhanda University of Hyderabad, Andhra Pradesh, India
Aaron Dhir Faculty of Law, University of Windsor, Ontario, Canada
Kate Diesfeld Auckland University of Technology, New Zealand
Robert Dinerstein American University, Washington College of Law,
Washington DC, USA
Saida Douki Socit Tunisienne de Psychiatrie, Tunis, Tunisia
Moera Douthett Pasifika Healthcare, Henderson Waitakere City, Auckland,
New Zealand
Claire Dubois-Hamdi Secrtariat de la Charte Sociale Europenne, Strasbourg,
France
Peter Edwards Peter Edwards & Co., Hoylake, United Kingdom
Ahmed Abou El-Azayem World Federation for Mental Health, Cairo, Egypt
Flicien N'tone Enyime Ministry of Health, Yaound, Cameroon
Sev S. Fluss Council for International Organizations of Medical
Sciences, Geneva, Switzerland
Maurizio Focchi Associazione Cittadinanza, Rimini, Italy
Abra Fransch World Organization of National Colleges, Academies and
Academic Associations of General Practitioners/Family
Physicians, Bulawayo, Zimbabwe
Gregory Fricchione Carter Center, Atlanta, GA, USA
Michael Friedman Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Diane Froggatt World Fellowship for Schizophrenia and Allied Disorders,
Ontario, Canada
Gary Furlong CLSC Mtro, Montreal, Quebec Canada
Elaine Gadd Bioethics Department, Council of Europe, Strasbourg,
France
Vijay Ganju National Association of State Mental Health Program,
Directors Research Institute, Alexandria, Virginia, USA
Reine Gobeil Douglas Hospital, Quebec, Canada
Howard Goldman National Association of State Mental Health Program,
Directors Research Institute and University of Maryland
School of Medecine, MD, USA
vi
Nacanieli Goneyali Hospital Services, Ministry of Health, Suva, Fiji
Maria Grazia Giannicheda Dipartimento di Economia Istituzioni Societ, University of
Sassari, Sassari, Italy
Stephanie Grant Office of the United Nations High Commissioner for
Human Rights, Geneva, Switzerland
John Gray Policy and Systems Development, Branch, International
Association of Gerontology, Ministry Responsible for
Seniors, Victoria BC, Canada
Margaret Grigg Mental Health Branch, Department of Human Services,
Melbourne, Australia
Jose Guimon Department of Psychiatry, University Hospitals of Geneva,
Switzerland
Oye Gureje Department of Psychiatry, University College Hospital,
Ibadan, Nigeria
Karin Gutierrez-Lobos Medical University of Vienna, Department of Psychiatry,
Vienna, Austria
Timothy Harding Institut universitaire de mdecine lgale, Centre mdical
universitaire, Geneva, Switzerland
Gaston Harnois WHO Collaborating Centre, Douglas Hospital Research
Centre, Verdun, Quebec, Canada
Gary Haugland Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Robert Hayes Mental Health Review Tribunal of New South Wales,
Australia
HE Yanling Shanghai Mental Health Center, Shanghai, China
Ahmed Mohamed Heshmat Ministry of Health and Population, Mental Health
Programme, Cairo, Egypt
Karen Hetherington Rgie Rgionale de la Sant et des Services Sociaux de
Montral-Centre, Montral, Quebec, Canada
Frederick Hickling Section of Psychiatry, Department of Community Health,
University of West Indies, Kingston, Jamaica
Kim Hopper Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Paul Hunt Office of the United Nations High Commissioner for
Human Rights and Department of Law and Human Rights
Centre, University of Essex, United Kingdom
HWANG Tae-Yeon Department of Psychiatric Rehabilitation and Community
Mental Health, Yongin Mental Hospital, Republic of Korea
Lars Jacobsson Department of Psychiatry, Faculty of Medicine, University
of Umea, Umea, Sweden
Aleksandar Janca Department of Psychiatry & Behavioural Science,
University of Western Australia, Perth, Australia
Heidi Jimenez Regional Office for the Americas, World Health
Organization, Washington, USA
Dale L. Johnson World Fellowship for Schizophrenia and Allied Disorders
(WFSAD), Taos, New Mexico, USA
Kristine Jones Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Nancy Jones Seattle, WA, USA
Emmanuel Mpinga Kabengele Institut de Mdecine Sociale et Prventive de l'Universit
de Genve, Facult de Mdecine, Geneva, Switzerland
Nadia Kadri Universit Psychiatrique Ibn Rushd, Casablanca,
Morocco
Lilian Kanaiya Schizophrenia Foundation of Kenya, Nairobi, Kenya
vii
Eddie Kane Mental Health and Secure Services, Department of
Health, Manchester, United Kingdom
Zurab I. Kekelidze Serbsky National Research Centre for Social and Forensic
Psychiatry, Moscow, Russian Federation
David Musau Kiima Department of Mental Health, Ministry of Health, Nairobi,
Kenya
Susan Kirkwood European Federation of Associations of Families of
Mentally Ill persons, Aberdeen, United Kingdom
Todd Krieble Mental Health Policy and Service Development, Mental
Health Directorate, Ministry of Health, Wellington,
New Zealand
John P. Kummer Equilibrium, Unteraegeri, Switzerland
Lourdes Ladrido-Ignacio Department of Psychiatry and Behavioural Medicine,
College of Medicine and Philippines General Hospital,
Manila, Philippines
Pirkko Lahti Finnish Association for Mental Health, Maistraatinportti,
Finland
Eero Lahtinen Department of Health, Ministry of Social Affairs and
Health, Helsinki, Finland
Eugene M. Laska Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Eric Latimer Douglas Hospital Research Centre, Quebec, Canada
Louis Letellier de St-Just Montreal, Quebec, Canada
Richard Light Disability Awareness in Action, London, United Kingdom
Bengt Lindqvist Office of the United Nations High Commissioner for
Human Rights, Geneva, Switzerland
Linda Logan Policy Development, Texas Department of Mental Health
and Mental Retardation, Austin, TX, USA
Marcelino Lpez Research and Evaluation, Andalusian Foundation for
Social Integration of the Mentally Ill, Seville, Spain
Juan Jos Lpez Ibor World Psychiatric Association, Lpez-Ibor Clinic, Madrid,
Spain
Crick Lund Department of Psychiatry and Mental Health, University of
Cape Town, South Africa
Annabel Lyman Behavioural Health Division, Ministry of Health, Koror,
Palau
MA Hong National Center for Mental Health, China-CDC, Beijing,
China
George Mahy University of the West Indies, Queen Elizabeth Hospital,
Barbados
Rohit Malpani Regional Office for South-East Asia, World Health
Organization, New Delhi, India
Douma Djibo Maga Ministry of Public Health, Niamey, Niger
Mohamed Mandour Italian Cooperation, Consulate General of Italy, Jerusalem
Joseph Mbatia Mental Health Unit, Ministry of Health, Dar es Salaam,
United Republic of Tanzania
Nalaka Mendis University of Colombo, Sri Lanka
Cline Mercier Douglas Hospital Research Centre, Quebec, Canada
Thierry Mertens Department of Strategic Planning and Innovation, World
Health Organization, Geneva, Switzerland
Judith Mesquita Human Rights Centre, University of Essex, Colchester,
United Kingdom
Jeffrey Metzner Department of Psychiatry, University of Colorado, School
of Medicine, Denver, CO, USA
viii
Leen Meulenbergs Service fdral public de la Sant, Brussels, Belgium
Harry I. Minas Centre for International Mental Health and Victorian
Transcultural Psychiatry, University of Melbourne,
Australia
Alberto Minoletti Mental Health Unit, Ministry of Health, Santiago, Chile
Paula Mogne Ministry of Health, Maputo, Mozambique
Fernando Mora Cabinet of the Commissioner for Human Rights, Council
of Europe, Strasbourg, France
Paul Morgan SANE, South Melbourne, Australia
Driss Moussaoui Universit psychiatrique, Centre Ibn Rushd, Casablanca,
Morocco
Srinivasa Murthy Regional Office for the Eastern Mediterranean, World
Health Organization, Cairo, Egypt
Rebecca Muhlethaler Special Committee of NGOs on Human Rights, Geneva,
Switzerland
Matt Muijen Regional Office for Europe, World Health Organization,
Copenhagen, Denmark
Carmine Munizza Centro Studi e Ricerche in Psichiatria, Turin, Italy
Shisram Narayan St Giles Hospital, Suva, Fiji
Sheila Ndyanabangi Ministry of Health, Kampala, Uganda
Jay Neugeboren New York, NY, USA
Frank Njenga Psychiatrists Association of Kenya, Nairobi, Kenya
Grayson Norquist National Institute of Mental Health, Bethesda, MD, USA
Tanya Norton Ethics, Trade, Human Rights and Health Law, World
Health Organization, Geneva
David Oaks MindFreedom Support Coalition International, OR, USA
Olabisi Odejide College of Medicine, University of Ibadan, Nigeria
Angela Ofori-Atta Clinical Psychology Unit, University of Ghana, Medical
School, Accra, Ghana
Richard O'Reilly Department of Psychiatry, University Campus, University
of Western Ontario, Canada
Mehdi Paes Arrazi Arrazi University Psychiatric Hospital, Sale, Morocco
Rampersad Parasram Ministry of Health, Port of Spain, Trinidad and Tobago
Vikram Patel London School of Hygiene & Tropical Medicine,
and Sangath Centre, Goa, India
Dixianne Penney Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Avanti Perera Nawala, Sri Lanka
Michael L. Perlin New York Law School, New York, USA
Yogan Pillay Strategic Planning, National Department of Health,
Pretoria, South Africa
Svetlana Polubinskaya Institute of State and Law, Russian Academy of Sciences,
Moscow, Russian Federation
Laura L. Post Mariana Psychiatric Services, Saipan, Northern Mariana
Islands, USA
Prema Ramachandran Planning Commission, New Delhi, India
Bas Vam Ray European Federation of Associations of Families of
Mentally Ill persons, Heverlee, Belgium
Darrel A. Regier American Psychiatric Institute for Research and
Education, Arlington, VA, USA
Brian Robertson Department of Psychiatry, University of Cape Town,
South Africa
Julieta Rodriguez Rojas Caja Constarricense de Seguro Social, San Jos,
Costa Rica
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Eric Rosenthal Mental Disability Rights International, Washington DC,
USA
Leonard Rubenstein Physicians for Human Rights, Boston, MA, USA
Khalid Saeed Institute of Psychiatry, Rawalpindi, Pakistan
Ayesh M. Sammour Community Mental Health, Ministry of Health, Palestinian
Authority, Gaza
Aive Sarjas Department of Social Welfare, Ministry of Health, Tallinn,
Estonia
John Saunders Schizophrenia Ireland, Dublin, Ireland
Ingeborg Schwarz Inter-Parliamentary Union, Geneva, Switzerland
Stefano Sensi Office of the United Nations High Commissioner for
Human Rights, Geneva, Switzerland
Radha Shankar AASHA (Hope), Indira Nagar, Chennai, India
SHEN Yucun Institute of Mental Health, Beijing University, China
Naotaka Shinfuku International Center for Medical Research, Kobe
University Medical School, Japan
Carole Siegel Nathan S. Kline Institute for Psychiatric Research,
Orangeburg, New York, USA
Helena Silfverhielm National Board of Health and Welfare, Stockholm,
Sweden
Joel Slack Respect International, Montgomery, AL, USA
Alan Stone Faculty of Law and Faculty of Medicine, Harvard
University, Cambridge, MA, USA
Zebulon Taintor World Association for Psychosocial Rehabilitation,
Department of Psychiatry, New York University Medical
Center, New York, USA
Michele Tansella Department of Medicine and Public Health, University of
Verona, Italy
Daniel Tarantola World Health Organization, Geneva, Switzerland
Jacob Taylor Maryland, USA
Myriam Tebourbi Office of the United Nations High Commissioner for
Human Rights, Geneva, Switzerland
Mrinali Thalgodapitiya NEST, Gampaha District, Sri Lanka
Graham Thornicroft PRISM, The Maudsley Institute of Psychiatry, London,
United Kingdom
Giuseppe Tibaldi Centro Studi e Ricerche in Psichiatria, Turin, Italy
E. Fuller Torrey Stanley Medical Research Centre, Bethesda, MD, USA
Gombodorjiin Tsetsegdary NCD & MNH Programme, Ministry of Health and Social
Welfare, Ulaanbaatar, Mongolia
Bogdana Tudorache Romanian League for Mental Health, Bucharest, Romania
Judith Turner-Crowson NIMH Community Support Programme, Kent,
United Kingdom
Samuel Tyano World Psychiatry Association, Tel Aviv, Israel
Liliana Urbina Regional Office for Europe, World Health Organization,
Copenhagen, Denmark
Pascale Van den Heede Mental Health Europe, Brussels, Belgium
Marianna Vrfalvi-Bognarne Ministry of Health, Budapest, Hungary
Uldis Veits Riga Municipal Health Commission, Riga, Latvia
Luc Vigneault Association des Groupes de Dfense des Droits en Sant
mentale du Quebec, Canada
WANG Liwei Ministry of Health, Beijing, China
WANG Xiangdong Regional Office for the Western Pacific, World Health
Organization, Manila, Philippines
Helen Watchirs Regulatory Institution Network, Research School of Social
Sciences, Canberra, Australia
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Harvey Whiteford The University of Queensland, Queensland Centre for
Mental Health Research, Wacol, Australia
Ray G. Xerri Department of Health, Floriana, Malta
XIE Bin Shanghai Mental Health Centre, Shanghai, China
Derek Yach Global Health Division, Yale University, New Haven, CT,
USA
YU Xin Institute of Mental Health, Beijing University, China
Tuviah Zabow Department of Psychiatry, University of Cape Town,
South Africa
Howard Zonana Department of Psychiatry, Yale University, New Haven,
CT, USA
WHO would like to acknowledge the generous financial support of the Government of Norway
and the Geneva International Academic Network (GIAN/RUIG) for the development of the
WHO Resource Book on Mental Health, Human Rights and Legislation. The overall financial
support of the Governments of Italy, the Netherlands and New Zealand, and the Corporate
Social Responsibility Europe, Johnson and Johnson, is also gratefully acknowledged.
Layout and Graphic design: 2s ) Graphicdesign
Preface xv
Chapter 1 Context of mental health legislation 1
1. Introduction 1
2. The interface between mental health law and mental health policy 2
3. Protecting, promoting and improving rights through
mental health legislation 3
3.1 Discrimination and mental health 3
3.2 Violations of human rights 4
3.3 Autonomy and liberty 5
3.4 Rights for mentally ill offenders 5
3.5 Promoting access to mental health care and community integration 6
4. Separate versus integrated legislation on mental health 7
5. Regulations, service orders, ministerial decrees 7
6. Key international and regional human rights instruments related
to the rights of people with mental disorders 8
6.1 International and regional human rights instruments 8
6.1.1 International Bill of Rights 9
6.1.2 Other international conventions related to mental health 11
7. Major human rights standards applicable to mental health 13
7.1 UN Principles for the Protection of Persons with Mental Illness
and the Improvement of Mental Health Care (MI Principles, 1991) 13
7.2 Standard Rules on the Equalization of Opportunities
for Persons with Disabilities (Standard Rules, 1993) 14
8. Technical standards 15
8.1 Declaration of Caracas (1990) 15
8.2 Declaration of Madrid (1996) 15
8.3 WHO technical standards 15
8.4 The Salamanca Statement and Framework for Action on
Special Needs Education (1994) 16
9. Limitation of rights 16
Chapter 2 Content of mental health legislation 19
1. Introduction 19
2. Preamble and objectives 19
3. Definitions 20
3.1 Mental illness and mental disorder 20
3.2 Mental disability 22
3.3 Mental incapacity 23
3.4 Unsoundness of mind 23
3.5 Definitions of other terms 26
4. Access to mental health care 27
4.1 Financial resources for mental health care 27
4.2 Mental health in primary care 28
4.3 Allocating resources for underserved populations 29
4.4 Access to medications and psychosocial interventions 29
4.5 Access to health (and other) insurance 29
4.6 Promoting community care and deinstitutionalization 30
Table of contents
xi
5. Rights of users of mental health services 31
5.1 Confidentiality 32
5.2 Access to information 32
5.3 Rights and conditions in mental health facilities 33
5.3.1 Environment 34
5.3.2 Privacy 35
5.3.3 Communication 35
5.3.4 Labour 36
5.4 Notice of rights 36
6. Rights of families and carers of persons with mental disorders 38
7. Competence, capacity and guardianship 39
7.1 Definitions 39
7.2 Assessment of incapacity 40
7.2.1 Capacity to make a treatment decision 40
7.2.2 Capacity to select a substitute decision-maker 40
7.2.3 Capacity to make a financial decision 40
7.3 Determining incapacity and incompetence 41
7.4 Guardianship 41
8. Voluntary and involuntary mental health care 43
8.1 Voluntary admission and voluntary treatment 43
8.2 Non-protesting patients 45
8.3 Involuntary admission and involuntary treatment 46
8.3.1 Combined versus a separate approach to
involuntary admission and involuntary treatment 47
8.3.2 Criteria for involuntary admission 49
8.3.3 Procedure for involuntary admission 50
8.3.4 Criteria for involuntary treatment (where procedures
for admission and treatment are separate) 53
8.3.5 Procedure for involuntary treatment of admitted persons 53
8.3.6 Proxy consent for treatment 56
8.3.7 Involuntary treatment in community settings 57
8.4 Emergency situations 60
8.4.1 Procedure for involuntary admission and treatment
in emergency situations 60
9. Staff requirements for determining mental disorder 61
9.1 Level of skills 61
9.2 Professional groups 62
10. Special treatments 62
10.1 Major medical and surgical procedures 63
10.2 Psychosurgery and other irreversible treatments 63
10.3 Electroconvulsive therapy (ECT) 64
11. Seclusion and restraint 64
12. Clinical and experimental research 66
13. Oversight and review mechanisms 67
13.1 Judicial or quasi-judicial oversight of involuntary
admission/treatment and other restrictions of rights 68
13.1.1 Composition 69
13.2 Regulation and oversight body 69
13.2.1 Composition 70
13.2.2 Additional powers 70
13.3 Complaints and remedies 70
13.4 Procedural safeguards 71
14. Police responsibilities with respect to persons with mental disorders 72
14.1 Powers of the police 72
14.2 Responding to calls for assistance 73
xii
14.3 Protections for persons with mental disorders 73
14.3.1 Place of safety 73
14.3.2 Treatment options 73
14.3.3 Detention period 74
14.3.4 Prompt notification 74
14.3.5 Review of records 74
15. Legislative provisions relating to mentally ill offenders 75
15.1 The pre-trial stages in the criminal justice system 76
15.1.1 The decision to prosecute 76
15.2 The trial stage in the criminal justice system 76
15.2.1 Fitness to stand trial 76
15.2.2 Defence of criminal responsibility
(mental disorder at time of offence) 77
15.3 The post-trial (sentencing) stage in the criminal justice system 78
15.3.1 Probation orders and community treatment orders 78
15.3.2 Hospital orders 78
15.4 The post-sentencing (serving sentence in prison) stage 79
15.5 Facilities for mentally ill offenders 79
16. Additional substantive provisions affecting mental health 81
16.1 Anti-discrimination legislation 81
16.2 General health care 81
16.3 Housing 81
16.4 Employment 82
16.5 Social security 82
16.6 Civil issues 82
17. Protections for vulnerable groups minors, women, minorities and refugees 83
17.1 Minors 83
17.2 Women 84
17.3 Minorities 85
17.4 Refugees 85
18. Offences and penalties 86
Chapter 3 Process: drafting, adopting and implementing
mental health legislation 89
1. Introduction 89
2. Preliminary activities 91
2.1 Identifying mental disorders and barriers to mental health care 91
2.2 Mapping of mental-health-related legislation 92
2.3 Studying international conventions and standards 93
2.4 Reviewing mental health legislation in other countries 93
2.5 Building a consensus and negotiating for change 95
2.6 Educating the public on issues concerning mental health and
human rights 95
3. Drafting mental health legislation 96
3.1 The drafting process 96
3.2 The need for consultation 97
3.3 Inviting consultation 97
3.4 Process and procedure for consultation 99
3.5 Language of legislation 102
4. Adoption of legislation 103
4.1 Legislative process 103
4.1.1 Responsibility for adopting legislation 103
4.1.2 Debate of draft legislation and its adoption 104
xiii
4.1.3 Sanction, promulgation and publication of new legislation 104
4.2 Key actions during adoption of legislation 105
4.2.1 Mobilizing public opinion 105
4.2.2 Lobbying members of the executive branch
of government and the legislature 105
5. Implementing mental health legislation 106
5.1 Importance and role of bodies responsible for implementation 106
5.2 Dissemination and training 108
5.2.1 Public education and awareness 108
5.2.2 Users, families and advocacy organizations 108
5.2.3 Mental health, health and other professionals 109
5.2.4 Developing information and guidance materials 110
5.3 Financial and human resources 110
References 113
Bibliography 118
Annexes
Annex 1 WHO Checklist on Mental Health Legislation 119
Annex 2 Summary of major provisions and international instruments
related to the rights of people with mental disorders 155
Annex 3 United Nations Principles for the Protection of Persons with Mental
Illness and the Improvement of Mental Health Care 157
Annex 4 Extract from the PAHO/WHO Declaration of Caracas 165
Annex 5 Extract from the Declaration of Madrid of the World
Psychiatric Association 166
Annex 6 Example: Rights of a Patient as specified in Connecticut, USA 169
Annex 7 Example: Rights of Recipients of Mental Health Services, State of Maine
Department of Behavioral and Developmental Services, USA 171
Annex 8 Example: Forms for involuntary admission and treatment
(combined approach) and appeal form, Victoria, Australia 173
Annex 9 Example: New Zealand Advance Directives for Mental Health Patients 178
xiv
xv
There are many ways to improve the lives of people with mental disorders. One important way
is through policies, plans and programmes that lead to better services. To implement such
policies and plans, one needs good legislationthat is, laws that place the policies and plans in
the context of internationally accepted human rights standards and good practices. This
Resource Book aims to assist countries in drafting, adopting and implementing such legislation.
It does not prescribe a particular legislative model for countries, but rather highlights the key
issues and principles to be incorporated into legislation.
As is true for all aspects of health, the marked differences in the financial and human resources
available in countries affect how mental health issues are addressed. Indeed, the needs
expressed by mental health service users, families and carers, and health workers are highly
dependent on current and past service provision, and peoples expectations vary significantly
from country to country. As a result, certain services and rights that are taken for granted in
some countries will be the objectives other countries strive for. However, efforts can be made
in all countries to improve mental health services and promote and protect human rights in order
to better meet the needs of people with mental disorders.
Most countries could improve mental health significantly if they had additional resources
dedicated specifically to mental health. Yet, even when resources are constrained, means can
be found as this Resource Book makes clear for international human rights standards to be
respected, protected and fulfilled. In certain instances, reform can be undertaken with few or no
additional resources, although a minimum level of resources is always necessary to attain even
basic goals and, clearly, additional resources will need to be committed especially in countries
that now have only minimal or no mental health resources if basic international human rights
standards are to be met.
Legislation can itself be a means to secure more resources for mental health, improve rights and
mental health standards and conditions in a country. However, in order for a law to make a
positive difference to the lives of people with mental disorders, it must have realistic and
attainable goals. An unrealistic law on which the country cannot deliver serves no purpose at
all, and can result in unnecessary expenses related to litigation, thereby diverting resources from
service development. Legislatures should therefore only pass a law after exploring the resource
implications. The question of how the objectives set out in this Resource Book can realistically
be achieved in each country should be a major consideration for all readers of this book.
What does this Resource Book provide?
The chapters and annexes of this book contain many examples of diverse experiences and
practices, as well as extracts of laws and other law-related documents from different countries.
These examples do not represent recommendations or models to be replicated; rather, they
are designed to illustrate what different countries are doing in the area of mental health, human
rights and legislation.
Three key elements of effective legislation are outlined: context, content and process in other
words, the why, what and how of mental health legislation. In addition, Annex 1 contains
a Checklist on Mental Health Legislation, which can be used in conjunction with the Resource
Book. The checklist is designed to assist countries in assessing whether key components are
included in their mental health law, and in ensuring that the broad recommendations contained
in the Resource Book are carefully examined and considered.
Throughout the book, reference is also made to the WHO Mental Health Policy and Service
Guidance Package. This Package consists of a series of interrelated modules on issues such
as mental health policy development, advocacy, financing and service organization, among
others, designed to assist countries in addressing key mental health reform issues.
Preface
For whom is this Resource Book intended?
A variety of individuals, organizations and government departments are likely to find this
Resource Book useful. More specifically, it is aimed at those directly involved in drafting or
amending mental-health-related legislation, as well as those responsible for guiding the law
through the adoption and implementation process. Within most countries, this is likely to be
several people rather than one individual. Working through the Resource Book as a team, and
discussing and debating points raised and their specific cultural and country relevance, is likely
to result in the most productive use of this resource.
Beyond this specific group of users, this volume identifies numerous stakeholders with varied
aims and interests, all of whom may benefit from using it. These include: politicians and
parliamentarians; policy-makers; staff in government ministries (health, social welfare, law,
finance, education, labour, police and correctional services); health professionals (psychiatrists,
psychologists, psychiatric nurses and social workers) and professional organizations; family
members of those with mental disorders; users and user groups; advocacy organizations;
academic institutions; service providers; nongovernmental organizations (NGOs); civil rights
groups; religious organizations; associations such as employee unions, staff welfare
associations, employer groups, resident welfare associations and congregations of particular
communities; and organizations representing minorities and other vulnerable groups.
Some readers may turn to the Resource Book to understand the context of human rights-
oriented mental health legislation, others to better understand their potential roles or to
appreciate or argue what or why a particular item should be included. Yet others may wish to
examine international trends or to assess how they may help with the adoption process or in
implementing the legislation. It is our hope that all will find what they need and that, as a result,
their shared goal of achieving better mental health support will be advanced through the
adoption and implementation of legislation that meets human rights standards and good
practices.
Mr Alexander Capron,
Director, Ethics, Trade, Human Rights and Health Law
Dr Michelle Funk
Coordinator, Mental Health Policy and Service Development
Dr Benedetto Saraceno
Director, Mental Health and Substance Abuse
xvi
1. Introduction
The fundamental aim of mental health legislation is to protect, promote and improve the lives
and mental well-being of citizens. In the undeniable context that every society needs laws to
achieve its objectives, mental health legislation is no different from any other legislation.
People with mental disorders are, or can be, particularly vulnerable to abuse and violation of
rights. Legislation that protects vulnerable citizens (including people with mental disorders)
reflects a society that respects and cares for its people. Progressive legislation can be an
effective tool to promote access to mental health care as well as to promote and protect the
rights of persons with mental disorders.
The presence of mental health legislation, however, does not in itself guarantee respect and
protection of human rights. Ironically, in some countries, particularly where legislation has not
been updated for many years, mental health legislation has resulted in the violation, rather than
the promotion, of human rights of persons with mental disorders. This is because much of the
mental health legislation initially drafted was aimed at safeguarding members of the public from
dangerous patients and isolating them from the public, rather than promoting the rights of
persons with mental disorders as people and citizens. Other legislation permitted long-term
custodial care of persons with mental disorders who posed no danger to society but were
unable to care for themselves, and this too resulted in a violation of human rights. In this
context, it is interesting to note that although 75% of countries around the world have mental
health legislation, only half (51%) have laws passed after 1990, and nearly a sixth (15%) have
legislation dating back to the pre-1960s (WHO, 2001a). Legislation in many countries is
therefore outdated and, as mentioned above, in many instances takes away the rights of
persons with mental disorders rather than protecting their rights.
The need for mental health legislation stems from an increasing understanding of the personal,
social and economic burdens of mental disorders worldwide. It is estimated that nearly 340
million people worldwide are affected by depression, 45 million by schizophrenia and 29 million
by dementia. Mental disorders account for a high proportion of all disability adjusted life years
(DALYs) lost, and this burden is predicted to grow significantly (WHO, 2001b) in the future.
In addition to the obvious suffering due to mental disorders, there exists a hidden burden of
stigma and discrimination faced by those with mental disorders. In both low- and high-income
countries, stigmatization of people with mental disorders has persisted throughout history,
manifested by stereotyping, fear, embarrassment, anger and rejection or avoidance. Violations
of basic human rights and freedoms and denial of civil, political, economic, social and cultural
rights to those suffering from mental disorders are a common occurrence around the world,
both within institutions and in the community. Physical, sexual and psychological abuse is an
everyday experience for many with mental disorders. In addition, they face unfair denial of
employment opportunities and discrimination in access to services, health insurance and
housing policies. Much of this goes unreported and therefore this burden remains unquantified
(Arboleda-Flrez, 2001).
Legislation offers an important mechanism to ensure adequate and appropriate care and
treatment, protection of human rights of people with mental disorders and promotion of the
mental health of populations.
Chapter 1 Context of mental health legislation
1
2
This chapter covers five main areas:
The interface between mental health law and mental health policy;
Protecting, promoting and improving lives through mental health legislation;
Separate versus integrated legislation on mental health;
Regulations, service orders and ministerial decrees;
Key international human rights instruments related to the rights of people with mental
disorders.
2. The interface between mental health law and mental health policy
Mental health law represents an important means of re-enforcing the goals and objectives of
policy. When comprehensive and well conceived, a mental health policy will address critical
issues such as:
establishment of high quality mental health facilities and services;
access to quality mental health care;
protection of human rights;
patients right to treatment;
development of robust procedural protections;
integration of persons with mental disorders into the community; and
promotion of mental health throughout society.
Mental health law or other legally prescribed mechanisms, such as regulations or declarations,
can help to achieve these goals by providing a legal framework for implementation and
enforcement.
Conversely, legislation can be used as a framework for policy development. It can establish a
system of enforceable rights that protects persons with mental disorders from discrimination and
other human rights violations by government and private entities, and guarantees fair and equal
treatment in all areas of life. Legislation can set minimum qualifications and skills for accreditation
of mental health professionals and minimum staffing standards for accreditation of mental health
facilities. Additionally, it can create affirmative obligations to improve access to mental health
care, treatment and support. Legal protections may be extended through laws of general
applicability or through specialized legislation specifically targeted at persons with mental
disorders.
Policy-makers within government (at national, regional and district levels), the private sector and
civil society, who may have been reluctant to pursue changes to the status quo, may be obliged
to do so based on a legislative mandate; others who may have been restricted from developing
progressive policies may be enabled through legislative changes. For example, legal provisions
that prohibit discrimination against persons with mental disorders may induce policy-makers to
develop new policies for protection against discrimination, while a law promoting community
treatment as an alternative to involuntary hospital admissions may provide policy-makers with
much greater flexibility to create and implement new community-based programmes.
By contrast, mental health law can also have the opposite effect, preventing the implementation
of new mental health policies by virtue of an existing legislative framework. Laws can inhibit
policy objectives by imposing requirements that do not allow for the desired policy modifications
or effectively prevent such modifications. For instance, in many countries, laws that do not
include provisions related to community treatment have hindered the implementation of
community treatment policies for persons with mental disorders. Additionally, policy may be
hindered even under permissive legal structures due to a lack of enforcement powers.
3
Policy and legislation are two complementary approaches for improving mental health care and
services; but unless there is also political will, adequate resources, appropriately functioning
institutions, community support services and well trained personnel, the best policy and
legislation will be of little significance. For instance, the community integration legislation
mentioned above will not succeed if the resources provided are insufficient for developing
community-based facilities, services and rehabilitation programmes. While legislation can
provide an impetus for the creation of such facilities, services and programmes, legislators and
policy-makers need to follow through in order to realize the full benefits of community integration
efforts. All mental health policies require political support to ensure that legislation is
implemented correctly. Political support is also needed to amend legislation after it has been
passed to correct any unintended situations that may undermine policy objectives.
In summary, mental health law and mental health policy are closely related. Mental health law
can influence the development and implementation of policy, while the reverse is similarly true.
Mental health policy relies on the legal framework to achieve its goals, and protect the rights and
improve the lives of persons affected by mental disorders.
3. Protecting, promoting and improving rights through mental health legislation
In accordance with the objectives of the United Nations (UN) Charter and international
agreements, a fundamental basis for mental health legislation is human rights. Key rights and
principles include equality and non-discrimination, the right to privacy and individual autonomy,
freedom from inhuman and degrading treatment, the principle of the least restrictive environment,
and the rights to information and participation. Mental health legislation is a powerful tool for
codifying and consolidating these fundamental values and principles. Equally, being unable to
access care is an infringement of a persons right to health, and access can be included in
legislation. This section presents a number of interrelated reasons why mental health legislation
is necessary, with special attention to the themes of human rights and access to services.
3.1 Discrimination and mental health
Legislation is needed to prevent discrimination against persons with mental disorders.
Commonly, discrimination takes many forms, affects several fundamental areas of life and
(whether overt or inadvertent) is pervasive. Discrimination may impact on a persons access to
adequate treatment and care as well as other areas of life, including employment, education and
shelter. The inability to integrate properly into society as a consequence of these limitations can
increase the isolation experienced by an individual, which can, in turn, aggravate the mental
disorder. Policies that increase or ignore the stigma associated with mental disorder may
exacerbate this discrimination.
The government itself can discriminate by excluding persons with mental disorders from many
aspects of citizenship such as voting, driving, owning and using property, having rights to sexual
reproduction and marriage, and gaining access to the courts. In many cases, the laws do not
actively discriminate against people with mental disorders, but place improper or unnecessary
barriers or burdens on them. For example, while a countrys labour laws may protect a person
against indiscriminate dismissal, there is no compulsion to temporarily move a person to a less
stressful position, should they require some respite to recover from a relapse of their mental
condition. The result may be that the person makes mistakes or fails to complete the work, and is
therefore dismissed on the basis of incompetence and inability to carry out allocated functions.
Discrimination may also take place against people with no mental disorder at all if they are
mistakenly viewed as having a mental disorder or if they once experienced a mental disorder earlier
in life. Thus protections against discrimination under international law go much further than simply
outlawing laws that explicitly or purposefully exclude or deny opportunities to people with
disabilities; they also address legislation that has the effect of denying rights and freedoms (see, for
example, Article 26 of the International Covenant on Civil and Political Rights of the United Nations).
4
3.2 Violations of human rights
One of the most important reasons why human-rights-oriented mental health legislation is vital
is because of past and ongoing violations of these rights. Some members of the public, certain
health authorities and even some health workers have, at different times and in different places,
violated and in some instances continue to violate the rights of people with mental disorders
in a blatant and extremely abusive manner. In many societies, the lives of people with mental
disorders are extremely harsh. Economic marginalization is a partial explanation for this;
however, discrimination and absence of legal protections against improper and abusive
treatment are important contributors. People with mental disorders are often deprived of their
liberty for prolonged periods of time without legal process (though sometimes also with unfair
legal process, for example, where detention is allowed without strict time frames or periodic
reports). They are often subjected to forced labour, neglected in harsh institutional environments
and deprived of basic health care. They are also exposed to torture or other cruel, inhumane or
degrading treatment, including sexual exploitation and physical abuse, often in psychiatric
institutions.
Furthermore, some people are admitted to and treated in mental health facilities where they
frequently remain for life against their will. Issues concerning consent for admission and
treatment are ignored, and independent assessments of capacity are not always undertaken.
This means that many people may be compulsorily kept in institutions, despite having the
capacity to make decisions regarding their future. On the other hand, where there are shortages
of hospital beds, the failure to admit people who need inpatient treatment, or their premature
discharge (which can lead to high readmission rates and sometimes even death), also
constitutes a violation of their right to receive treatment.
People with mental disorders are vulnerable to violations both inside and outside the institutional
context. Even within their own communities and within their own families, for example, there are
cases of people being locked up in confined spaces, chained to trees and sexually abused.
Examples of inhuman and degrading treatment
of people with mental disorders
The BBC (1998) reported how in one country, people are locked away in traditional mental
hospitals, where they are continuously shackled and routinely beaten. Why? Because it is
believed that mental illness is evil and that the afflicted are possessed by bad spirits.
An NGO that campaigns for the rights of people with mental disorders, has documented neglect
and ill-treatment of children and adults in institutions all over the world. Instances of children
being tied to their beds, lying in soiled beds or clothing, and receiving no stimulation or
rehabilitation for their condition are not uncommon.
Another NGO has reported that certain countries continue to lock up patients in cage beds for
hours, days, weeks, or sometimes even months or years. One report indicated that a couple of
patients have lived in these devices nearly 24 hours a day for at least the last 15 years. People in
caged beds are also often deprived of any form of treatment including medicines and
rehabilitation programmes.
It is also well documented that in many countries, people with mental disorders live with their
families or on their own and receive no support from the government. The stigma and
discrimination associated with mental disorders means that they remain closeted at home and
cannot participate in public life. The lack of community-based services and support also leaves
them abandoned and segregated from society.
5
3.3 Autonomy and liberty
An important reason for developing mental health legislation is to protect peoples autonomy and
liberty. Legislation can do this in a number of ways. For example, it can:
Promote autonomy by ensuring mental health services are accessible for people who wish
to use such services;
Set clear, objective criteria for involuntary hospital admissions, and, as far as possible,
promote voluntary admissions;
Provide specific procedural protections for involuntarily committed persons, such as the
right to review and appeal compulsory treatment or hospital admission decisions;
Require that no person shall be subject to involuntary hospitalization when an alternative is
feasible;
Prevent inappropriate restrictions on autonomy and liberty within hospitals themselves (e.g.
rights to freedom of association, confidentiality and having a say in treatment plans can be
protected); and
Protect liberty and autonomy in civil and political life through, for example, entrenching in
law the right to vote and the right to various freedoms that other citizens enjoy.
In addition, legislation can allow people with mental disorders, their relatives or other designated
representatives to participate in treatment planning and other decisions as a protector and
advocate. While most relatives will act in the best interests of a member of their family with a
mental disorder, in those situations where relatives are not closely involved with patients, or have
poor judgement or a conflict of interest, it may not be appropriate to allow the family member to
participate in key decisions, or even to have access to confidential information about the person.
The law, therefore, should balance empowering family members to safeguard the persons rights
with checks on relatives who may have ulterior motives or poor judgement.
Persons with mental disorders are also at times subject to violence. Although public perceptions
of such people are often of violent individuals who are a danger to others, the reality is that they
are more often the victims than the perpetrators. Sometimes, however, there may be an
apparent conflict between the individuals right to autonomy and societys obligation to prevent
harm to all persons. This situation could arise when persons with a mental disorder pose a risk
to themselves and to others due to an impairment of their decision-making capacity and to
behavioural disturbances associated with the mental disorders. In these circumstances,
legislation should take into account the individuals right to liberty and their right to make
decisions regarding their own health, as well as societys obligations to protect persons unable
to care for themselves, to protect all persons from harm, and to preserve the health of the entire
population. This complex set of variables demands close consideration when developing
legislation, and wisdom in its implementation.
3.4 Rights for mentally ill offenders
The need to be legally fair to people who have committed an apparent crime because of a
mental disorder, and to prevent the abuse of people with mental disorders who become involved
in the criminal justice system, are further reasons why mental health legislation is essential. Most
statutes acknowledge that people who did not have control of their actions due to a mental
disorder at the time of the offence, or who are unable to understand and participate in court
proceedings due to mental illness, require procedural safeguards at the time of trial and
sentencing. But how these individuals are handled and treated is often not addressed in the
legislation or, if it is, it is done poorly, leading to abuse of human rights.
Mental health legislation can lay down procedures for dealing with people with mental disorders
at various stages of the legal process (see section 15 below).
6
3.5 Promoting access to mental health care and community integration
The fundamental right to health care, including mental health care, is highlighted in a number of
international covenants and standards. However, mental health services in many parts of the
world are poorly funded, inadequate and not easily accessible to persons in need. Some
countries have hardly any services, while in others services are available to only certain segments
of the population. Mental disorders sometimes affect peoples ability to make decisions
regarding their health and behaviour, resulting in further difficulties in seeking and accepting
needed treatment.
Legislation can ensure that appropriate care and treatment are provided by health services and
other social welfare services, when and where necessary. It can help make mental health
services more accessible, acceptable and of adequate quality, thus giving persons with mental
disorders better opportunities to exercise their right to receive appropriate treatment. For
example, legislation and/or accompanying regulations can include a statement of responsibility
for:
Developing and maintaining community-based services;
Integrating mental health services into primary health care;
Integrating mental health services with other social services;
Providing care to people who are unable to make health decisions due to their mental
disorder;
Establishing minimum requirements for the content, scope and nature of services;
Assuring the coordination of various kinds of services;
Developing staffing and human resource standards;
Establishing quality of care standards and quality control mechanisms; and
Assuring the protection of individual rights and promoting advocacy activities among
mental health users.
Many progressive mental health policies have sought to increase opportunities for persons with
mental disorders to live fulfilling lives in the community. Legislation can foster this if it: i) prevents
inappropriate institutionalization; and ii) provides for appropriate facilities, services, programmes,
personnel, protections and opportunities to allow persons with mental disorders to thrive in the
community.
Legislation can also play an important role in ensuring that a person suffering from a mental
disorder can participate in the community. Prerequisites for such participation include access to
treatment and care, a supportive environment, housing, rehabilitative services (e.g. occupational
and life skills training), employment, non-discrimination and equality, and civil and political rights
(e.g. right to vote, drive and access courts). All of these community services and protections can
be implemented through legislation.
Of course, the level of services that can be made available will depend on a countrys resources.
Legislation that contains unenforceable and unrealistic provisions will remain ineffective and
impossible to implement. Moreover, mental health services often lag behind other health care
services, or are not provided in an appropriate or cost-effective manner. Legislation can make a
big difference in securing their parity with other health care services, and in ensuring that what
is provided is appropriate to peoples needs.
Provision of medical insurance is another area where legislation can play a facilitating role. In
many countries, medical insurance schemes exclude payment for mental health care or offer
lower levels of coverage for shorter periods of time. This violates the principle of accessibility by
being discriminatory and creating economic barriers to accessing mental health services. By
including provisions concerning medical insurance, legislation can ensure that people with
mental disorders are able to afford the treatment they require.
7
4. Separate versus integrated legislation on mental health
There are different ways of approaching mental health legislation. In some countries there is no
separate mental health legislation, and provisions related to mental health are inserted into other
relevant legislation. For example, issues concerning mental health may be incorporated into
general health, employment, housing or criminal justice legislation. At the other end of the
spectrum, some countries have consolidated mental health legislation, whereby all issues of
relevance to mental health are incorporated into a single law. Many countries have combined
these approaches, and thus have integrated components as well as a specific mental health
law.
There are advantages and disadvantages to each of these approaches. Consolidated legislation
has the ease of enactment and adoption, without the need for multiple amendments to existing
laws. The process of drafting, adopting and implementing consolidated legislation also provides
a good opportunity to raise public awareness about mental disorders and educate policy-
makers and the public about human rights issues, stigma and discrimination. However,
consolidated legislation emphasizes segregation of mental health and persons with mental
disorders; hence, it can potentially reinforce stigma and prejudice against persons with mental
disorders.
The advantages of inserting provisions relating to mental disorders into non-specific relevant
legislation are that it reduces stigma and emphasizes community integration of those with mental
disorders. Also, by virtue of being part of legislation that benefits a much wider constituency, it
increases the chances that laws enacted for the benefit of those with mental disorders are
actually put into practice. Among the main disadvantages associated with dispersed legislation
is the difficulty in ensuring coverage of all legislative aspects relevant to persons with mental
disorders; procedural processes aimed at protecting the human rights of people with mental
disorders can be quite detailed and complex and may be inappropriate in legislation other than
a specific mental health law. Furthermore, it requires more legislative time because of the need
for multiple amendments to existing legislation.
There is little evidence to show that one approach is better than the other. A combined
approach, involving the incorporation of mental health issues into other legislation as well as
having a specific mental health law, is most likely to address the complexity of needs of persons
with mental disorders. However, this decision will depend on countries circumstances.
When drafting a consolidated mental health legislation, other laws (e.g. criminal justice, welfare,
education) will also need to be amended in order to ensure that provisions of all relevant laws
are in line with one another and do not contradict each other.
Example: Amending all laws related to mental health in Fiji
During the process of mental health law reform in Fiji, 44 different Acts were identified for
review to ensure that there were no disparities between the new mental health law and existing
legislation. In addition, the Penal Code and Magistrates Court rules were reviewed and a number
of sections identified as needing change in order to maintain legal consistency.
WHO Mission Report, 2003
5. Regulations, service orders, ministerial decrees
Mental health legislation should not be viewed as an event, but as an ongoing process that
evolves with time. This necessarily means that legislation is reviewed, revised and amended in
the light of advances in care, treatment and rehabilitation of mental disorders, and improvements
in service development and delivery. It is difficult to specify the frequency with which mental
8
health legislation should be amended; however, where resources allow, a 5- to 10-year period
for considering amendments would appear appropriate.
In reality, frequent amendments to legislation are difficult due to the length of time and the
financial costs of an amendment process and the need to consult all stakeholders before
changing the law. One solution is to make provisions in the legislation for the establishment of
regulations for particular actions that are likely to need constant modifications. Specifics are not
written into the legislation but, instead, provision is made in the statute for what can be
regulated, and the process for establishing and reviewing regulations. For example, in South
African law, rules for accreditation of mental health professionals are not specified in the
legislation, but are part of the regulations. Legislation specifies who is responsible for framing the
regulations and the broad principles upon which these regulations are based. The advantage of
using regulations this way is that it allows for frequent modifications to the accreditation rules
without requiring a lengthy process of amending primary legislation. Regulations can thus
provide flexibility to mental health legislation.
Other alternatives to regulations in some countries are the use of executive decrees and service
orders. These are often short- to medium-term solutions where, for various reasons, interim
interventions are necessary. For example, in Pakistan, an ordinance was issued in 2001
amending the mental health law, even though the National Assembly and the Senate had been
suspended under a Proclamation of Emergency. The preamble to the ordinance stated that
circumstances existed which made it necessary to take immediate action (Pakistan Ordinance
No. VIII of 2001). This was required and deemed desirable by most people concerned with
mental health, given the countrys existing outdated law. Nonetheless, the issuance of such an
ordinance needs to be ratified by the elected body within a specified time frame, as is the case
in Pakistan, to ensure that potentially retrogressive and/or undemocratic legislation does not
persist.
6. Key international and regional human rights instruments related to the rights of people
with mental disorders
The requirements of international human rights law, including both UN and regional human rights
instruments, should form the framework for drafting national legislation that concerns people
with mental disorders or regulates mental health and social service systems. International human
rights documents broadly fall into two categories: those which legally bind States that have
ratified such conventions, and those referred to as international human rights standards, which
are considered guidelines enshrined in international declarations, resolutions or
recommendations, issued mainly by international bodies. Examples of the first are international
human rights conventions such as the International Covenant on Civil and Political Rights
(ICCPR, 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESR,
1966). The second category, which includes UN General Assembly Resolutions such as
Principles for the Protection of Persons with Mental Illness and the Improvement of Mental
Health Care (MI Principles, 1991), while not legally binding, can and should influence legislation
in countries, since they represent a consensus of international opinion.
6.1 International and regional human rights instruments
There is a widespread misconception that because the human rights instruments relating
specifically to mental health and disability are non-binding resolutions, rather than obligatory
conventions, mental health legislation is therefore subject only to the domestic discretion of
governments. This is not true, as governments are under obligation, under international human
rights law, to ensure that their policies and practices conform to binding international human
rights law and this includes the protection of persons with mental disorders.
9
Treaty monitoring bodies at the international and regional levels have the role of overseeing and
monitoring compliance by States that have ratified international human rights treaties.
Governments that ratify a treaty agree to report regularly on the steps they have taken to
implement that treaty at the domestic level through changes in legislation, policy and practice.
Nongovernmental organizations (NGOs) can also submit information to support the work of
monitoring bodies. Treaty monitoring bodies consider the reports, taking into account any
information submitted by NGOs and other competent bodies, and publish their
recommendations and suggestions in concluding observations, which may include a
determination that a government has not met its obligations under the treaty. The international
and regional supervisory and reporting process thus provides an opportunity to educate the
public about a specialized area of rights. This process can be a powerful way to pressure
governments to uphold convention-based rights.
The treaty bodies of the European and Inter-American human rights system have also
established individual complaints mechanisms, which provide the opportunity for individual
victims of human rights violations to have their cases heard and to seek reparations from their
governments.
This section provides an overview of some of the key provisions of international and regional
human rights instruments that relate to the rights of persons with mental disorders.
6.1.1 International Bill of Rights
The Universal Declaration of Human Rights (1948), along with the International Covenant on Civil
and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR, 1966), together make up what is known as the International Bill of
Rights. Article 1 of the Universal Declaration of Human Rights, adopted by the United Nations
in 1948, provides that all people are free and equal in rights and dignity. Thus people with mental
disorders are also entitled to the enjoyment and protection of their fundamental human rights.
In 1996, the Committee on Economic, Social and Cultural Rights adopted General Comment 5,
detailing the application of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) with regard to people with mental and physical disabilities. General Comments, which
are produced by human rights oversight bodies, are an important source of interpretation of the
articles of human rights conventions. General comments are non-binding, but they represent the
official view as to the proper interpretation of the convention by the human rights oversight body.
The UN Human Rights Committee, established to monitor the ICCPR, has yet to issue a general
comment specifically on the rights of persons with mental disorders. It has issued General
Comment 18, which defines protection against discrimination against people with disabilities
under Article 26.
A fundamental human rights obligation in all three instruments is the protection against
discrimination. Furthermore, General Comment 5 specifies that the right to health includes the
right to access rehabilitation services. This also implies a right to access and benefit from
services that enhance autonomy. The right to dignity is also protected under General Comment
5 of the ICESCR as well as the ICCPR. Other important rights specifically protected in the
International Bill of Rights include the right to community integration, the right to reasonable
accommodation (General Comment 5 ICESCR), the right to liberty and security of person (Article
9 ICCPR) and the need for affirmative action to protect the rights of persons with disabilities,
which includes persons with mental disorders.
10
The right to health, as embodied in various international instruments
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
establishes the right of everyone to the enjoyment of the highest attainable standard of physical
and mental health. The right to health is also recognized in other international conventions, such
as Article 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial
Discrimination of 1965, Articles 11.1(f) and 12 of the Convention on the Elimination of All Forms
of Discrimination against Women of 1979, and Article 24 of the Convention on the Rights of the
Child of 1989. Several regional human rights instruments also recognize the right to health, such
as the European Social Charter of 1996, as revised (Art. 11), the African Charter on Human and
Peoples' Rights of 1981 (Art. 16), and the Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (Art. 10).
General Comment 14 of the Committee on Economic, Social and Cultural Rights aims to assist
countries in implementation of Article 12 of ICESCR. General Comment 14 specifies that the
right to health contains both freedoms and entitlements, which include the right to control one's
health and body, including sexual and reproductive freedom, and the right to be free from
interference, such as the right to be free from torture, non-consensual medical treatment and
experimentation. Entitlements also include the right to a system of health protection that
provides people with equality of opportunity to enjoy the highest attainable level of health.
According to the Committee, the right to health includes the following interrelated elements:
(i) Availability, i.e. health care facilities and services have to be available in sufficient quantity.
(ii) Accessibility, which includes:
non-discrimination, i.e. health care and services should be available to all without any
discrimination;
physical accessibility, i.e. health facilities and services should be within safe physical
reach, particularly for disadvantaged and vulnerable populations;
economic accessibility, i.e. payments must be based on the principle of equity and
affordable to all; and
information accessibility, i.e. the right to seek, receive and impart information and ideas
concerning health issues.
(iii) Acceptability, i.e. health facilities and services must respect medical ethics and be culturally
appropriate.
(iv) Quality, i.e. health facilities and services must be scientifically appropriate and of good
quality.
General Comment 14 further states that the right to health imposes three types or levels of
obligations on countries: the obligations to respect, protect and fulfil. The obligation to respect
requires countries to refrain from interfering, directly or indirectly, with the enjoyment of the
right to health. The obligation to protect requires countries to take measures to prevent third
parties from interfering with the guarantees provided under Article 12. Finally, the obligation to
fulfil contains obligations to facilitate, provide and promote. It requires countries to adopt
appropriate legislative, administrative, budgetary, judicial, promotional and other measures
towards the full realization of the right to health.
Article 7 of the ICCPR provides protection against torture, cruel, inhuman or degrading treatment,
and it applies to medical institutions, especially institutions providing psychiatric care. The General
Comment on Article 7 requires governments to provide information on detentions in psychiatric
hospitals, measures taken to prevent abuses, appeals process available to persons admitted to
psychiatric institutions and complaints registered during the reporting period.
A list of countries that have ratified both the ICESCR and the ICCPR can be accessed at
http://www.unhchr.ch/pdf/report.pdf
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6.1.2 Other international conventions related to mental health
The legally binding UN Convention on the Rights of the Child contains human rights provisions
specifically relevant to children and adolescents. These include protection from all forms of
physical and mental abuse; non-discrimination; the right to life, survival and development; the
best interests of the child; and respect for the views of the child. A number of its articles are
specifically relevant to mental health:
Article 23 recognizes that children with mental or physical disabilities have the right to
enjoy a full and decent life in conditions that ensure dignity, promote self-reliance and
facilitate the childs active participation in the community.
Article 25 recognizes the right to periodic review of treatment provided to children who are
placed in institutions for the care, protection or treatment of physical or mental health.
Article 27 recognizes the right of every child to a standard of living adequate for the childs
physical, mental, spiritual, moral and social development.
Article 32 recognizes the right of children to be protected from performing any work that is
likely to be hazardous or to interfere with their education, or to be harmful to their health or
physical, mental spiritual, moral or social development.
The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984) is also relevant to those with mental disorders. Article 16, for example, makes
States that are party to the Convention responsible for preventing acts of cruel, inhuman or
degrading treatment or punishment.
In certain mental health institutions there are a vast number of examples that could constitute
inhuman and degrading treatment. These include: lack of a safe and hygienic environment; lack
of adequate food and clothing; lack of adequate heat or warm clothing; lack of adequate health-
care facilities to prevent the spread of contagious diseases; shortage of staff leading to practices
whereby patients are required to perform maintenance labour without pay or in exchange for
minor privileges; and systems of restraint that leave a person covered in his or her own urine or
faeces or unable to stand up or move around freely for long periods of time.
The lack of financial or professional resources is not an excuse for inhuman and degrading
treatment. Governments are required to provide adequate funding for basic needs and to protect
the user against suffering that can be caused by a lack of food, inadequate clothing, improper
staffing at an institution, lack of facilities for basic hygiene, or inadequate provision of an
environment that is respectful of individual dignity.
There is no specific UN convention that addresses the special concerns of individuals with
disabilities. However, on 28 November 2001, the United Nations General Assembly adopted a
resolution calling for the creation of an ad hoc committee to consider proposals for a
comprehensive and integral international convention to protect and promote the rights and
dignity of persons with disabilities. Work is currently under way to draft this convention. Persons
with mental disorders would be among beneficiaries.
Apart from the various international systems for monitoring human rights, there are also a
number of regional conventions for the protection of human rights. These are discussed briefly
below.
African Region
African (Banjul) Charter on Human and Peoples Rights (1981) This is a legally binding
document supervised by the African Commission on Human and Peoples Rights. The
instrument contains a range of important articles on civil, political, economic, social and cultural
rights. Clauses pertinent to people with mental disorders include Articles 4, 5 and 16, which
cover the right to life and the integrity of the person, the right to respect of dignity inherent in a
human being, prohibition of all forms of exploitation and degradation (particularly slavery, slave
12
trade, torture and cruel, inhuman or degrading punishment), and the treatment and the right of
the aged and disabled to special measures of protection. It states that the aged and disabled
shall also have the right to special measures of protection in keeping with their physical or moral
needs. The document guarantees the right for all to enjoy the best attainable state of physical
and mental health.
African Court on Human and Peoples Rights The Assembly of Heads of State and
Government of the Organization of African Unity (OAU) now the African Union established an
African Court on Human and Peoples Rights to consider allegations of violations of human
rights, including civil and political rights and economic, social and cultural rights guaranteed
under the African Charter and other relevant human rights instruments. In accordance with
Article 34(3), the Court came into effect on 25 January 2004 after ratification by a fifteenth State.
The African Court has the authority to issue binding and enforceable decisions in cases brought
before it.
European Region
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
The European Convention for the Protection of Human Rights and Fundamental Freedoms,
backed by the European Court of Human Rights, provides binding protection for the human
rights of people with mental disorders residing in the States that have ratified the Convention.
Mental health legislation in European States is required to provide for safeguards against
involuntary hospitalization, based on three principles laid down by the European Court of Human
Rights:
Mental disorder is established by objective medical expertise;
Mental disorder is of a nature and degree warranting compulsory confinement; and
For continued confinement, it is necessary to prove persistence of the mental disorder
(Wachenfeld, 1992).
The European Court of Human Rights provides interpretation of the provisions of the European
Convention and also creates European human rights law. The evolving case law of the Court has
led to fairly detailed interpretations of the Convention concerning issues related to mental health.
European Convention for the Protection of Human Rights and Dignity of the Human Being, with
regard to the Application of Biology and Medicine: Convention on Human Rights and
Biomedicine (1996) This Convention, adopted by Member States of the Council of Europe and
other States of the European Community, was the first internationally legally binding instrument
to embody the principle of informed consent, provide for equal access to medical care and for
the right to be informed, as well as establishing high standards of protection with regard to
medical care and research.
Recommendation 1235 on Psychiatry and Human Rights (1994) Mental health legislation in
European States is also influenced by Recommendation 1235 (1994) on Psychiatry and Human
Rights, which was adopted by the Parliamentary Assembly of the Council of Europe. This lays
down criteria for involuntary admission, the procedure for involuntary admission, standards for
care and treatment of persons with mental disorders, and prohibitions to prevent abuses in
psychiatric care and practice.
Recommendation Rec (2004)10 Concerning the Protection of the Human Rights and Dignity of
Persons with Mental Disorder (2004) In September 2004, the Committee of Ministers of the
Council of Europe approved a recommendation which calls upon member states to enhance the
protection of the dignity, human rights and fundamental freedoms of people with mental
disorders, in particular, those subject to involuntary placement or involuntary treatment.
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Other European Conventions European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (1987) provides another layer of human rights
protection. The 8th Annual Report of the Committee on Torture, Council of Europe, stipulated
standards to prevent mistreatment of persons with mental disorders.
The revised European Social Charter (1996) provides binding protection for the fundamental
rights of people with mental disabilities who are nationals of the States that are parties to the
Convention. In particular, Article 15 of the Charter provides for the rights of these persons to
independence, social integration and participation in the life of the community. Recommendation
No R (83) 2, adopted by the Council of Ministers in 1983, is another important legal protection
of persons with mental disorder who are placed in institutions as involuntary patients.
Region of the Americas
American Declaration of the Rights and Duties of Man (1948) This provides for the protection
of civil, political, economic, social and cultural rights.
American Convention on Human Rights (1978) This Convention also encompasses a range of
civil, political, economic social and cultural rights, and establishes a binding means of protection
and monitoring by the Inter-American Commission on Human Rights and the Inter-American
Court of Human Rights. The Commission's recent examination of a case entitled Congo v
Ecuador has provided an opportunity for further interpretation of the Convention in relation to
mental health issues.
Additional Protocol to the American Convention on Human Rights in the area of Economic,
Social and Cultural Rights (1988) This Convention refers specifically to the rights of persons
with disabilities. Signatories agree to undertake programmes aimed at providing people with
disabilities with the necessary resources and environment for attaining the greatest possible
development of their personalities, as well as special training to families (including specific
requirements arising from the special needs of this group). Signatories also agree to these
measures being made a priority component of their urban development plans and to
encouraging the establishment of social groups to help persons with disabilities enjoy a fuller life.
Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with
Disabilities (1999) The objectives of this Convention are to prevent and eliminate all forms of
discrimination against persons with mental or physical disabilities, and to promote their full
integration into society. It is the first international convention that specifically addresses the rights
of persons with mental disorders. In 2001, the Inter-American Human Rights Commission issued
a Recommendation on the Promotion and Protection of Human Rights of Persons with Mental
Disabilities (2001), recommending that countries ratify this Convention. The Recommendation
also urges States to promote and implement, through legislation and national mental health
plans, the organization of community mental health services, in order to achieve the full
integration of people with mental disorders into society.
7. Major human rights standards applicable to mental health
7.1 UN Principles for the Protection of Persons with Mental Illness and the Improvement
of Mental Health Care (MI Principles, 1991)
In 1991, the UN Principles for the Protection of Persons with Mental Illness and the Improvement
of Mental Health Care (MI Principles, see Annex 3) established minimum human rights standards
of practice in the mental health field. International oversight and enforcement bodies have used
the MI Principles as an authoritative interpretation of the requirements of international
conventions such as the ICESCR.
14
The MI Principles have also served as a framework for the development of mental health
legislation in many countries. Australia, Hungary, Mexico and Portugal, among others, have
incorporated the MI Principles in whole or in part into their own domestic laws. The MI Principles
establish standards for treatment and living conditions within mental health facilities, and they
create protections against arbitrary detention in such facilities. These principles apply broadly to
persons with mental disorders, whether or not they are in psychiatric facilities, and they apply to
all persons admitted to a mental health facility whether or not they are diagnosed as having a
mental disorder. The last-mentioned provision is important because in many countries long-term
mental health facilities serve as repositories for people who have no history of mental disorder
or no current mental disorder, but who remain in the institution due to the lack of other
community facilities or services to meet their needs. The MI Principles recognize that every
person with a mental disorder shall have the right to live and work, as far as possible, in the
community.
The MI Principles have, however, been subject to some criticism. In 2003 the UN Secretary-
General in a report to the General Assembly noted that the MI Principles offer in some cases a
lesser degree of protection than that offered by existing human rights treaties, for example with
regard to the requirement for prior informed consent to treatment. In this regard, some
organizations of persons with disabilities, including the World Network of Users and Survivors of
Psychiatry, have called into question the protection afforded by the Principles (and in particular,
principles 11 and 16) and their consistency with existing human rights standards in the context
of involuntary treatment and detention. (United Nations, 2003)
7.2 Standard Rules on the Equalization of Opportunities for Persons with Disabilities
(Standard Rules, 1993)
The World Conference on Human Rights, which took place in Vienna in 1993, reiterated the fact
that international human rights law protects people with mental and physical disabilities, and that
governments should establish domestic legislation to realize those rights. In what has come to
be known as the Vienna Declaration, the World Conference declared that all human rights and
fundamental freedoms are universal, and thus unreservedly include persons with disabilities.
The Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) were
adopted at the end of the Decade of Disabled Persons (1982-1993) by General Assembly
Resolution 48/96. As a policy guidance instrument, the Standard Rules reiterate the goals of
prevention, rehabilitation and equalization of opportunities established by the World Programme
of Action. These 22 rules provide for national action in three main areas: preconditions for equal
participation, targets for equal participation, and implementation measures. The Standard Rules
are a revolutionary new international instrument because they establish citizen participation by
people with disabilities as an internationally recognized human right. To realize this right,
governments are expected to provide opportunities for people with disabilities and organizations
made up of people with disabilities to be involved in drafting new legislation on matters that affect
them. The Standard Rules call on every country to engage in a national planning process to bring
legislation, policies and programmes into conformity with international human rights standards.
15
8. Technical standards
In addition to UN General Assembly resolutions, UN agencies, world conferences, and
professional groups meeting under UN auspices have adopted a broad array of technical
guidelines and policy statements. These can be a valuable source of interpretation of
international human rights conventions.
8.1 Declaration of Caracas (1990)
The Declaration of Caracas (1990), adopted as a resolution by legislators, mental health
professionals, human rights leaders and disability activists convened by the Pan American
Health Organization (PAHO/WHO), has major implications for the structure of mental health
services (see Annex 4). It states that exclusive reliance on inpatient treatment in a psychiatric
hospital isolates patients from their natural environment, thereby generating greater disability.
The Declaration establishes a critical link between mental health services and human rights by
concluding that outmoded mental health services put patients human rights at risk.
The Declaration aims to promote community-based and integrated mental health services by
suggesting a restructuring of existing psychiatric care. It states that resources, care and
treatment for persons with mental disorders must safeguard their dignity and human rights,
provide rational and appropriate treatment, and strive to maintain persons with mental disorders
in their communities. It further states that mental health legislation must safeguard the human
rights of persons with mental disorders, and services should be organized so as to provide for
enforcement of those rights.
8.2 Declaration of Madrid (1996)
International associations of mental health professionals have also attempted to protect the
human rights of persons with mental disorders by issuing their own sets of guidelines for
standards of professional behaviour and practice. An example of such guidelines is the
Declaration of Madrid adopted by the General Assembly of the World Psychiatric Association
(WPA) in 1996 (see Annex 5). Among other standards, the Declaration insists on treatment
based on partnership with persons with mental disorders, and on enforcing involuntary
treatment only under exceptional circumstances.
8.3 WHO technical standards
In 1996, WHO developed the Mental Health Care Law: Ten Basic Principles (see box below) as
a further interpretation of the MI Principles and as a guide to assist countries in developing
mental health laws. In 1996, WHO also developed Guidelines for the Promotion of Human Rights
of Persons with Mental Disorders, which is a tool to help understand and interpret the MI
Principles and evaluate human rights conditions in institutions.
Mental Health Care Law: Ten Basic Principles
1. Promotion of mental health and prevention of mental disorders
2. Access to basic mental health care
3. Mental health assessments in accordance with internationally accepted principles
4. Provision of least restrictive type of mental health care
5. Self-determination
6. Right to be assisted in the exercise of self-determination
7. Availability of review procedure
8. Automatic periodic review mechanism
9. Qualified decision-maker
10. Respect of the rule of law
WHO, 1996
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8.4 The Salamanca Statement and Framework for Action on Special Needs Education
(1994)
In 1994, the World Conference on Special Needs Education adopted The Salamanca Statement
and Framework for Action on Special Needs Education, which affirmed the right to integrated
education for children with mental disabilities. The Salamanca Declaration is of particular
importance in implementing the World Declaration on Education for All (WDEA) and enforcing the
right to education established under the ICESCR.
9. Limitation of rights
There are a number of human rights where no restrictions are permissible under any
circumstances, such as freedom from torture and slavery, and freedom of thought, conscience
and religion. However, limitation and derogation clauses in most human rights instruments
recognize the need to limit human rights in certain instances, and within mental health there are
conditions when limitations need to be applied (see Chapter 2 for examples).
The Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights (Siracusa Principles) set criteria that should be met when
rights are restricted. Each one of the five criteria must be met, and the restrictions should be of
limited duration and subject to review.
The Siracusa Principles in summary
The restriction is provided for and carried out in accordance with the law.
The restriction is in the interest of the legitimate objective of general interest.
The restriction is strictly necessary in a democratic society to achieve the objective.
The restriction is necessary to respond to a public health need.
The restriction is proportional to the social aim, and there are no less intrusive and
restrictive means available to reach this social aim.
The restriction is not drafted or imposed arbitrarily (i.e. in an unreasonable or otherwise
discriminatory manner).
For a more detailed discussion on the role of international human rights documents in protecting
the rights of persons with mental disorders, see The Role of International Human Rights in
National Mental Health Legislation (WHO, 2001c), also available at:
http://www.who.int/mental_health/resources/policy_services/en/. Also, for a summary of major
provisions and international instruments related to the rights of people with mental disorders, see
Annex 2.
In summary, legislation should enable the achievement of public health and health policy
objectives. Governments are under an obligation to respect, promote and fulfil the fundamental
rights of people with mental disorders as outlined in binding international human rights
documents. In addition, other standards such as the MI Principles, which represent an
international consensus, can be used as guidelines for enacting legislation and implementing
policies that promote and protect the rights of people with mental disorders. Legislation can
assist persons with mental disorders to receive appropriate care and treatment. It can protect
and promote rights and prevent discrimination. It can also uphold specific rights, such as the
right to vote, to property, to freedom of association, to a fair trial, to judicial guarantees and
review of detentions, and to protection in such areas as housing and employment. Criminal
justice legislation can ensure appropriate treatment and protection of the rights of mentally ill
offenders. These are just a few examples that clearly illustrate that mental health law is more than
just care and treatment legislation limited to involuntary admission processes and care within
institutions.
17
Yet, despite the critical role of legislation, it is not the sole or a simple solution to the myriad of
problems faced in mental health, but only an enabling tool to achieve these objectives. Even in
countries with good legislation, informal systems may subvert legislative intent. For example,
mental health professionals who are not familiar with the provisions of a new law may continue
with customary practices in treatment provision, thus defeating the purpose of new,
progressive mental health legislation. Without adequate training and education and the full
involvement of a number of role players legislation may have little impact.
A strong commitment to ethical self-regulation by mental health professionals is another
important component in any system. Furthermore, over-restrictive legislation, even if it is well
intentioned, can impede rather than promote access to mental health care. For example,
legislative provisions related to admission or involuntary treatment might be so restrictive that
they cannot be fulfilled in a given resource scenario, resulting in a lack of necessary care. The
provision of adequate and appropriate care and treatment, and the promotion and protection of
human rights for persons with mental disorders are of primary importance. Legislation can play
an important role.
Context of Mental Health Legislation: Key issues
Legislation is complementary to mental health policies, plans and programmes, and can
serve to reinforce policy goals and objectives.
Persons with mental disorders are a vulnerable segment of society and they need special
protections.
Mental health legislation is necessary for protecting the rights of persons with mental
disorders in institutional settings and in the community.
Mental health legislation is more than just care and treatment legislation. It provides a
legal framework for addressing critical mental health issues such as access to care,
rehabilitation and aftercare, the full integration of people with mental disorders into the
community, and the promotion of mental health in different sectors of society.
Governments are under an obligation to respect, promote and fulfil the fundamental rights
of people with mental disorders, as outlined in binding international and regional human
rights documents.
Legislative issues pertaining to mental health can be consolidated into one single statute or
they may be dispersed in different legislative documents.
Progressive mental health legislation should incorporate human rights protections, as
included in international and regional human rights documents and technical standards.
Legislation should also enable the achievement of public health and health policy objectives.
18
Chapter 2 Content of mental health legislation
19
1. Introduction
This chapter covers important areas that need to be incorporated into mental health legislation.
Frequently, such legislation focuses only on involuntary admission and treatment, and neglects
or omits equally important concerns related to persons with mental disorders. While it is not
possible in this chapter to cover every area that affects mental health, a wide range of important
legislative matters are considered. The issues discussed may be included in general health laws,
or those related to such areas as social welfare and benefits, disability, guardianship, employment
equity and housing, or they may be included in specific mental health law. As discussed in
Chapter 1, laws related to mental health can satisfactorily be dispersed in a number of different
legislative measures or contained in a single statute. The type or form of the legislative text will
vary from country to country. For example, some countries may choose to spell out only the key
principles in a mental health act, and use regulations to specify the procedural details for
translating legislative intent into action; others may include the procedural aspects within the
main body of the mental health law.
In this chapter, a practical format is provided for the content of mental health legislation. It is
recognized that this format is likely to conform better with certain legislative frameworks than with
others, and it is emphasized that this is not the suggested format, since, in drafting laws,
countries will follow their own legislative patterns.
The extracts of national laws in this chapter are for illustrative purposes only; they serve as
examples of different texts and terminologies that have been adopted by different countries in
relation to their particular country situation and context. They do not represent suggested text
or terminology to be used.
2. Preamble and objectives
Mental health legislation is commonly divided into sections, often starting with a preamble (or
introduction) that outlines reasons why legislation is necessary.
Example of a preamble
Preamble of Polish Mental Health Protection Act
Acknowledging that mental health is a fundamental human value and acknowledging that the
protection of the rights of people with mental disorders is an obligation of the State, this Act
proclaims the following:
(Mental Health Protection Act, M284 1994, Poland)
The next section (or chapter) of a law often outlines the purpose and objectives the statute aims
to achieve. A statement of objectives is important, as it provides a guide for interpreting legislative
provisions. The preamble, together with the purpose and objectives, helps courts and others to
interpret legislative provisions whenever there is any ambiguity in the substantive provisions of the
statute.
20
Example of objectives
Objectives of the South African law
Objectives of this Act are to
a) Regulate the mental health care environment in a manner which
(i) enables the provision of the best possible mental health care, treatment and
rehabilitation that available resources can afford;
(ii) makes effective mental health care, treatment and rehabilitation services available
to the population equitably, effectively and in the best interests of the mental health
care user;
(iii) co-ordinates access to and the provision of mental health care, treatment, and
rehabilitation services; and
(iv) integrates access to and the provision of mental health care services within the
general health services environment.
b) Set out the rights and obligations of mental health care users and the obligations of
mental health care providers;
c) Regulate access to and the provision of mental health care and treatment to
(i) voluntary, assisted and involuntary mental health care users;
(ii) [S]tate patients (unfit to stand trial or of comprehending their criminal actions); and
(iii) mentally ill prisoners.
d) Regulate the manner in which the property of those with a mental illness may be dealt
with by courts of law; and
e) Provide for related matters.
(Extract from Mental Health Care Act, Act 17 of 2002, Republic of South Africa)
The subsequent section (or chapter) of a mental health law often contains definitions of terms
used in the legislation, (i.e. the substantive provisions and procedural aspects of the legislation).
These are discussed in detail below.
3. Definitions
The definition section in legislation provides interpretation and the meaning of the terms used.
Clear and unambiguous definitions are extremely important for those who need to understand
and implement the legislation, and for members of the public who may be affected by the
legislation, such as patients and their families. Courts also find this useful, as they have to make
rulings based on the stated definitions.
Defining the target group, or beneficiaries, of the legislation is usually an important role of the
definitions section.
3.1 Mental illness and mental disorder
Defining mental disorder is difficult because it is not a unitary condition but a group of disorders
with some commonalties. There is intense debate about which conditions are or should be
included in the definition of mental disorders. This can have significant implications when, for
example, a society is deciding on the types and severity of mental disorders that are potentially
eligible for involuntary treatment and services.
The definition of mental disorder adopted by any national legislation depends on many factors.
Foremost, the purpose of legislation will determine the exact boundaries of the category. Thus,
legislation that is primarily concerned with involuntary admission and treatment may restrict the
category to only severe mental disorders. On the other hand, legislation concerned with positive
rights may define mental disorder as broadly as possible to extend the benefits of legislation to all
21
persons with mental disorders. The definition of mental disorder also depends on the social,
cultural, economic and legal context in different societies. This Resource Book does not advocate
a particular definition; it only aims to make lawmakers and others involved in the process of
drafting legislation aware of the various choices and advantages and disadvantages of different
approaches to definitions (see Table 1 below).
A number of consumer organizations oppose use of the terms mental illness and mental
patient on the grounds that these support the dominance of the medical model. Most
international clinical documents avoid use of the term mental illness, preferring to use the term
mental disorder instead (see, for example, Classification of Mental and Behavioural Disorders:
Clinical Descriptions and Diagnostic Guidelines (ICD10) (WHO, 1992) and Diagnostic and
Statistical Resource Book on Mental Disorders (DSM-IV) (American Psychiatric Association,
1994)). The ICD-10 states that the term disorder is used so as to avoid the even greater
problems inherent in the use of terms such as disease and illness. Disorder is not an exact
term, but it is used here to imply the existence of a clinically recognisable set of symptoms or
behaviour associated in most cases with distress and with interference with personal functions.
Social deviance or conflict alone, without personal dysfunction, should not be included in mental
disorder as defined here (WHO, 1992).
The term mental disorder can cover mental illness, mental retardation (also known as mental
handicap and intellectual disability), personality disorders and substance dependence. Not
everyone considers all of these to be mental disorders; yet many legislative issues that pertain to
conditions such as schizophrenia and bipolar depression apply equally to other conditions such
as mental retardation, and therefore a broad definition is preferred.
People with mental retardation are often exposed to the same discrimination and abuse as
people with severe mental illness, and the legal protections needed are often the same for both
groups. However, there are major differences between the two groups; for example, with regard
to short- and longer-term ability to consent. Countries must therefore decide whether a single
law or separate laws are required. If mental retardation is included in mental health legislation,
it is important that sufficient safeguards be built in to ensure that mental retardation is not
considered synonymous with other mental disorders. A single law may be particularly relevant
to those countries that are unlikely to be able to draft and enact two separate laws due, for
example, to resource constraints. This option was utilized in South Africa. However, while both
mental illness and mental retardation were covered in the same mental health legislation, relevant
sections specified where only one or the other was implied. Many jurisdictions (e.g. India)
specifically exclude mental retardation from the purview of mental health legislation, but cover it
under separate legislation.
Inclusion of personality disorder in the definition of mental disorder is an equally complex issue.
Personality disorders are considered part of the mental disorders spectrum at a clinical level, as
reflected by their inclusion in classificatory systems such as ICD-10 and DSM-IV. However, there
are doubts about the validity and reliability of diagnosis of many subtypes of personality
disorders. Moreover, questions arise regarding the amenability of personality disorders to
treatment. While there are still few well validated and broadly accepted treatment modalities for
most types of such disorders, there is growing evidence that many personality disorders are in
fact amenable to treatment (Livesley, 2001; Sperry, 2003). If a particular condition is not
responsive to treatment, or if no treatments are available, it is difficult to justify involuntary
admission of persons with this condition to a mental health facility. However, it is noted that
legislation in many countries allows for protective custody of severely disturbed people who are
unresponsive to available treatments, although many would argue that this should not be the
purpose of mental health legislation.
Another risk of including personality disorders in mental health legislation is that in many countries
a diagnosis of personality disorder has been used against vulnerable groups, especially young
women, whenever they do not conform with the dominant social, cultural, moral and religious
standards. Political dissidents and minorities are also vulnerable to being diagnosed as having a
personality disorder when they take positions in opposition to the local norms.
22
If personality disorders are included in legislation, countries need to incorporate substantial legal
provisions to prevent misuse. This Resource Book does not advocate a particular approach of
either including or excluding personality disorders. Countries need to address this taking into
account the unique structure and traditions of their health care and legal systems.
Another debatable issue is whether or not substance addiction should be included as a mental
disorder. While substance dependence is also included in most international mental health
classificatory systems such as ICD10, many countries specifically exclude this disorder from
mental health legislation. The England and Wales Mental Health Act of 1983, for example, allows
a person to be excluded from its scope for reasons only of promiscuity or other immoral conduct,
sexual deviancy or dependence on alcohol or drugs (emphasis added). Clinical experience
indicates that people who abuse alcohol and drugs are generally not good candidates for
involuntary admission and treatment, and that other laws may be required to deal effectively with
this group of people.
Example of definitions
Below are examples of definitions of mental disorder used in legislation in two different
countries, which reflect some of the complexities in defining the term.
Mauritius: Mental disorder means a significant occurrence of a mental or behavioural
disorder exhibited by symptoms indicating a disturbance of mental functioning, including
symptoms of a disturbance of thought, mood, volition, perception, orientation or memory which
are present to such a degree as to be considered pathological.
(Mental Health Care Act, Act 24 of 1998, Mauritius)
Jamaica: Mental disorder means (a) a substantial disorder of thought, perception, orientation
or memory which grossly impairs a persons behaviour, judgement, capacity to recognise reality
or ability to meet the demands of life which renders a person to be of unsound mind, or (b)
mental retardation, where such a condition is associated with abnormally aggressive or seriously
irresponsible behaviour.
(The Mental Health Act of 1997, Jamaica)
The MI Principles use the term mental illness but do not define it. Instead, they provide
guidelines for how a mental illness can and cannot be determined. These include:
A determination of mental illness shall never be made on the basis of political,
economic or social status or membership in a cultural, racial or religious group, or for
any other reason not directly relevant to mental health status.
Family or professional conflict, or non-conformity with moral, social, cultural or political
values or religious beliefs prevailing in a persons community, shall never be a
determining factor in the diagnosis of mental illness.
A background of past treatment or hospitalization as a patient shall not of itself justify
any present or future determination of mental illness.
No person or authority shall classify a person as having, or otherwise indicate that a
person has, a mental illness, except for purposes directly relating to mental illness or the
consequence of mental illness.
A determination that a person has mental illness shall be made in accordance with
internationally accepted medical standards.
3.2 Mental disability
An alternative to mental disorder is the concept of mental disability. The International
Classification of Functioning, Disability and Health (ICIDH-2) (WHO, 2001d) defines disability as
an umbrella term for impairments, activity limitations, and participation restrictions. It denotes
the negative aspects of the interaction between an individual (with a health condition) and that
individual's contextual factors (environmental and personal factors).
23
Mental disability is not synonymous with mental disorder, but includes persons with mental
disorder. Persons who have recovered from a mental disorder may continue to have disabilities
and many persons with ongoing mental disorder will also have disability due to the disorder.
Disability is, in some instances, an intrinsic sign of a specific disease or syndrome (e.g. some
mental disorders require the presence of functional impairment for the diagnosis to be made),
and in others it is a consequence of that disease or syndrome (Bertolote & Sartorius, 1996).
Advantages of using the term mental disability are that the concept of disability refers directly
to peoples immediate perceptions of their lives, their environment and their needs and limitations
(Bertolote & Sartorius, 1996), and that professionals from outside the health sector more easily
understand this concept. One obvious disadvantage of the term is its broad nature, which brings
many more people under the purview of mental health legislation than would be the case with more
restrictive terms such as mental disorder or mental illness. Moreover, the term mental disability
is unpopular among some mental health service users who prefer the use of the term psychosocial
disability. They believe that psychiatric or mental disability belongs to the medical sphere, and
they therefore tend to prefer a distinct separation between illness and disability.
3.3 Mental incapacity
Another alternative in defining a target group is the concept of mental incapacity. Decisions are
then based on the ability of the individual, as determined by medical and other professional staff,
to understand the nature of the issue at hand (e.g. concerning treatment or admission), evaluate
the benefits of this issue, make a choice and communicate that choice. Mental incapacity is a
narrower concept than mental disorder. The use of this term may be advantageous in laws that
focus essentially on admission and treatment aspects of mental health. However, the narrow
scope of this term may not be appropriate in laws which cover a broad range of mental health
issues, as this would exclude the majority of mental health service users from the purview of
important rights such as access to care, rights and conditions in mental health care facilities,
confidentiality and access to information.
One merit of this option is that it does not make mental disorder and incapacity interchangeable.
The range and severity of mental disorders are accepted, but lack of capacity has to be expressly
established before the law is allowed to intervene in a persons life. There is a danger, however,
that if the judicial interpretation of this formulation is not sufficiently rigorous, incapacity may be
presumed when mental disorder alone has been established. To offset such a consequence, it
can be expressly stated in the statute that incapacity shall not be presumed upon proof of mental
disorder, and that incapacity should be separately established.
Example of definitions
The Ontario (Canada) Health Care Consent Act states: a person is capable with respect to
treatment, admission to a care facility or a personal assistance service if the person is able to
understand the information that is relevant to making a decision about the treatment, admission
or personal assistance service, as the case may be, and able to appreciate the reasonably
foreseeable consequences of a decision or lack of decision.
(Health Care Consent Act of 1996 Ontario, Canada)
3.4 Unsoundness of mind
Some jurisdictions use the legal term unsoundness of mind as an alternative to mental disorder,
e.g. the European Convention for the Protection of Human Rights and Fundamental Freedoms
(1950). It is assumed that all persons are of sound mind unless proved otherwise. Unsoundness
of mind is defined as not of sound mind, which, of course, risks circularity. The concept of
unsound mind is close to, but not the same as, the concept of mental incapacity. There is no
clinical equivalent of unsound mind, and in many instances unsound mind will include conditions
not necessarily attributable to mental disorders. According to the European Court, because of the
fluidity of the terms usage, it should not be given a definitive interpretation (Gostin, 2000).
Term
1. Scope
2. Advantages
3. Disadvantages
Mental Illness
Very narrow
Well defined
In common usage and
hence understood by all
stakeholders (albeit
occasionally with
different meanings)
Reinforces the medical
model
Mental Disorder
Narrow
Compatible with medical classificatory
systems
Easy to operationalize
Includes a range of conditions, from
the most benign to extremely serious;
this may be a limitation in situations
when the aim is to restrict applicability
to only the most serious mental health
conditions
Includes a range of conditions, some
of which may not be the focus of
mental health legislation e.g. mental
retardation
24
Table 1. Comparison of definitions of mental ill health
Mental Disability
Broad
Broad scope of the term,
useful for positive protection
of rights by ensuring that all
persons with the disability,
irrespective of severity, are
included
Closer to consumers and
lay persons perception of
the effects of mental health
problems on their lives
Not well defined
Broad scope of the term
means that many people
may be included within the
scope of involuntary
admission and treatment
Mental Incapacity
Extremely narrow
Similarly defined and
understood by medical
and legal disciplines
Does not equate mental
disorder/illness with
incompetence
Narrow focus provides
greater protection to
patients when rights are
being taken away by
excluding all but those
with the most serious
mental illness/disorder
Narrow scope of the term
limits its usefulness for
positive promotion of
rights of persons with
mental disorders
Unsoundness of Mind
Variable, but tending
to be broad
Fluidity of definition
may be of some
advantage when
interpreted in persons
best interests
A legal concept, not
equivalent to specific
medical categories
Risk of abuse
Likely to impair
dialogue between
medical and legal
disciplines
25
26
In summary, countries need to decide how broadly or narrowly to define the beneficiaries or
target group of the legislation. Choosing between a broader definition and a narrow one is
complex. If mental health legislation covers purely care and treatment, most mental health
users, advocates and human rights activists prefer a narrower definition. On the other hand, if
such legislation is aimed at protecting a broad range of rights of persons with mental health
problems and includes, for example, anti-discrimination clauses and protection from abuse, a
more inclusive definition of mental health problems appears preferable.
Another approach may be to use a broader definition in provisions of the law that create
entitlement to services and rights. A narrower definition could then be used in sections that
govern the involuntary admission and involuntary treatment process. However, this may be too
complicated for many countries where straight and simple legislation is more likely to gain
favour with the legislature and the courts. In such instances, choices will have to be made one
way or the other, taking the above considerations into account.
Once a particular term has been chosen and defined, it is important that it be used consistently
throughout the law and not interchangeably with other terms of similar meaning, as this can
create confusion in interpretation of the law.
3.5 Definitions of other terms
Legislative documents use a variety of technical terms, which may have different contextual
meanings in different settings and countries. To remove any ambiguity and help with the
interpretation of legislation, these terms should be precisely defined in the legislative document.
Examples from Mental Health Acts of two countries are given below.
Examples of definitions
Pakistan
Patient means a person who is under treatment and care.
Psychiatric facility means a hospital, ward, clinic, nursing home, day-care institution, half-way
house, whether in public or private sector, involved in the care of mentally disordered persons.
Place of safety means a Government run health facility, psychiatric facility, or residence or any
suitable relative who is willing to temporarily receive the patient.
(Ordinance No VIII of 2001, Pakistan)
Zimbabwe
Patient means a person (a) who is mentally disordered or intellectually handicapped; or (b)
concerning whom proceedings under this Act are considered necessary to determine whether or
not he [or she] is mentally disordered or intellectually handicapped.
Institution means any mental hospital which the Minister, by notice in the Gazette, has declared
to be an institution for the purposes of this Act.
Reception order means an order issued by a magistrate under section eight or twenty-six for the
removal of a patient to, and his reception and detention in, an institution or in single care.
(Mental Health Act of 1996, Zimbabwe)
The examples above reveal the disparity that exists in the level of specificity of definitions for any
term. Definitions also sometimes make reference to the countrys other legislative documents.
Ultimately, the precise definitions of these terms depend on the local social, cultural, medical and
legal contexts. Once again, it is important that the term that has been adopted and defined be
used consistently throughout the law so as to avoid confusion in interpretation of that law.
27
Definition of mental ill health and other terms: Key issues
Legislation may use a broader definition when dealing with rights and a narrower definition
when considering involuntary admission and treatment.
Countries may prefer to include or exclude people with mental retardation from the
substantive provisions of mental health legislation. It is important, however, to bear in
mind that persons with mental retardation can, and sometimes do, also suffer from mental
disorder. Many of the rights that require reinforcement through legislation are the same for
people with mental retardation as for people with other mental disorders.
Legislation must ensure that mental disorders are not presumed on the basis of:
(i) political, economic or social status, or membership in a cultural, racial or religious
group, or for any other reason not directly relevant to mental health status;
(ii) family or professional conflict, or non-conformity with moral, social, cultural or
political values or religious beliefs prevailing in a persons community;
(iii) merely having a background of past treatment or hospitalization.
Legislation should precisely define all technical terms that are used in order to remove any
ambiguity and help with the interpretation of law.
Once a particular term has been chosen and defined, it is important that it be used
consistently throughout the law, and not interchangeably with other terms of similar
meaning.
4. Access to mental health care
Legislation can play an important role in improving access to mental health care (see also
Chapter 1, subsection 3.5). Improving access means increasing availability of services,
improving financial and geographical accessibility, and providing services that are acceptable
and of adequate quality. This section discusses a framework for addressing these issues with a
view to lowering access barriers in many countries.
MI Principles: Access to mental health care
Principles 1 (Fundamental Freedoms and Basic Rights) and 8 (Standards of Care) of the MI
Principles are concerned with access to high quality care. Principle 1 establishes the right of all
persons to the best available mental health care as part of the health and social care system.
Principle 8 establishes the right to receive mental health care that is appropriate to a persons
needs and protects that person from harm.
4.1 Financial resources for mental health care
In some legislative frameworks or countries it may be possible to include specific provisions for
the resources and funding of mental health services. Where this is possible, it is advisable to
indicate where resources should be spent, thereby enabling adequate provision in areas such as
community mental health care and prevention and promotion programmes.
Most mental health legislation does not deal with funding directly. This is left to the domains of
budget and policy. This does not mean, however, that legislation cannot directly influence
financial allocations.
28
Examples of four ways in which legislation can direct funding are by stipulating the need for:
Equality with physical health In many countries, mental health lags behind physical health
in care standards. It is possible for legislation to declare that people with mental disorders
should be treated on the basis of equality with people with physical health problems. A law
may state, for example, that persons with mental health disorders should have the right to
receive treatment under the same quality and standards as individuals receiving other types
of medical treatments. Without mentioning finances directly, this seemingly simple and
innocuous statement can serve to force the authorities to allocate additional resources to
mental health in order to meet the legislative requirement of equality in levels of mental health
care with those of physical health care. Similarly, in private sector care, following the above
legislative statement, health insurance companies may be required to apply equitable
funding principles for people with mental and physical health problems. This does not
currently occur in many countries.
Additional funding Where legislation states a service requirement, there is a legal obligation
for this to be carried out. For instance, if a law specifies that people with acute mental
disorders who seek voluntary care must be treated in a general hospital, provision must be
made by the State for this to occur. Similarly, if a particular right is legislated that affects a
public health institution (e.g. the right to privacy), the onus is on the authorities to ensure that
the necessary infrastructure and resources are available to put this right into effect.
Redirecting funding Legislation may determine a different way of providing mental health
care from the prevailing norm or legal statute. For example, whereas previous legislation may
have directed that most people receive care in psychiatric institutions, a new law may assert
that the majority should receive mental health care within their local communities. Without
making any financial statement as such, the legislation implies that a financial shift from
hospitals to the community should take place.
Funding of statutory bodies When legislation states that a structure such as a mental
health review board or a review tribunal be set up, this becomes statutory and the authorities
must establish such a body. However, before such legislation is passed, the appropriate
ministry should ensure, by means of whatever mechanisms pertain in its country, that
additional funding is available for the review bodies. If this is not agreed to, the authorities run
the risk of possibly having to allocate funds dedicated to mental health services for the
establishment of the statutory structure, thereby undermining mental health service delivery.
It is therefore easy to see why legislators are cautious about each clause of legislation and its
potential financial implications before passing a bill into law.
4.2 Mental health in primary care
Consistent with the principle that mental health benefits should be put on an equal footing with
general health benefits, countries can formulate legislation that ensures the introduction of
mental health interventions into primary care. In low-income countries with acute shortages of
mental health professionals, delivering mental health services through general health care is the
most viable strategy for improving the access of underserved populations to mental health care.
Integrated care can also help to reduce the stigma associated with seeking help from vertically
structured mental health services, thus further improving accessibility.
It is clear, however, that legislation alone will not give effect to provisions unless the necessary
infrastructure and personnel have been prepared and put in place. For example, staff need to be
trained to deal with mental disorders, and medication must be available.
29
Example: Mental health in primary care
The Albanian Law on Mental Health (1991) states:
Article 5: Mental health care for persons with mental disorders is provided by psycho-social
care services, the primary health care service through the family physician and, in particular,
by the psychiatric medical service, which includes emergency treatment, ambulatory service,
hospital care, rehabilitation houses, community health care and psychosocial services through
a psycho-sociologist and social worker. (Emphasis added)
(Law on Mental Health of 1991, Albania)
4.3 Allocating resources for underserved populations
Within countries, there are disparities in service provision. These disparities may be geographical
(people in certain areas may have little access to mental health services) or segmental (certain
populations, e.g. minority groups within society, may have reduced access to culturally
appropriate mental health services). Legislation can help to reduce these disparities by laying
down criteria for needs-based allocation of services. (Section 17 below describes how legislation
may be used to benefit minors, women, minorities and refugees.) Laws can also simply state
that mental health care must be provided equitably (see box on Objectives in the South African
law on mental health care in section 2 above).
4.4 Access to medications and psychosocial interventions
Psychotropic drugs are crucial for the treatment of certain mental disorders, and play an
important role in secondary prevention. However, even basic psychotropic drugs are frequently
not available in many countries. Legislative action can help improve the availability of drugs at
the primary and secondary care level. Legislation can also help improve access to medication in
countries where few or no psychiatrists exist, for instance, by permitting general practitioners
and other medical specialists with the appropriate training to prescribe psychotropic drugs.
Drug supply is a problem in many developing countries and with regard to many conditions.
Nevertheless, legislation can ensure that psychiatric medication is at least as available and
accessible as medication for other medical conditions. It can do this by including a provision on
equality with physical health (described above) and/or by specifically stating that adequate
provision must be made for psychiatric medication on a countrys essential drugs list, as has
been done in Brazil (Order of Service No 1.077, 2001).
Medication alone is not enough in the treatment of most mental disorders. Other psychosocial
interventions such as counselling, specific psychotherapies and vocational rehabilitation are
equally important. Improving access to such interventions requires policy initiatives as well as
legislative action. In Tunisia, for example, the law states, Any person suffering from a mental
disorder shall have the right to appropriate medical care and physical treatment as well as, to
the extent possible, instruction, training, and rehabilitation that will aid him to develop his
capacities and skills. (Law on Mental Health, 1992, Tunisia).
4.5 Access to health (and other) insurance
In many countries, individuals need health insurance to obtain health care. Legislation in such
countries should contain provisions to prevent discrimination against people with mental
disorders in obtaining adequate health insurance for the care and treatment of physical and
mental health problems from public and private health insurance providers. In the United States
of America (USA), the Mental Health Parity Act (1996) prevents health insurers from discriminating
in their capping of annual limits on mental health benefits in comparison to benefits for redress of
physical injuries (see also subsection 4.1 above and comments on equity with physical health).
30
Recent tendencies of health insurance companies are to deny coverage based upon a patients
genetic profile. Article 6 of the Universal Declaration on the Human Genome and Human Rights
provides that No one shall be subjected to discrimination based on genetic characteristics that
is intended to infringe or has the effect of infringing human rights, fundamental freedoms and
human dignity.
To contravene such practices, the United States Congress, for example, passed the Health
Insurance Portability and Accountability Act (HIPAA) in 1996, which forbids insurers from denying
applicants health insurance coverage based upon genetic tests that demonstrate a
predisposition to develop certain mental or physical disorders.
In some countries, people with mental disorder find it difficult to obtain insurance, such as
income or mortgage protection insurance. As with medical insurance, such discrimination may
require protection by the law.
4.6 Promoting community care and deinstitutionalization
Legislation has a major role in promoting community-based care for mental disorders and
reducing involuntary admissions to mental health facilities particularly long-stay admissions to
mental institutions. Legislation can put into operation the principle of least restrictive alternative
(providing treatment in settings and in a manner which is the least intrusive while meeting
treatment needs).
Legislation may require that admission to hospital be allowed only if it can be shown that
community-based treatment options are not feasible or have failed. For example, as early as
1978, Italy legislated that the proposal for compulsory health treatment can envisage
hospitalization care only if mental disturbances are such as to require urgent therapeutic
intervention, if these interventions are not accepted by the patient, and if there are not the
conditions and the circumstances for taking immediate and timely health care measures outside
the hospital (emphasis added) (Voluntary and Compulsory Health Treatments, Law No 180,
1978, Italy).
Twenty years later, and referring not just to compulsory admissions, the law in Portugal stated,
The provision of mental health care is undertaken primarily at community level, so as to avoid
the displacement of patients from their familiar environment and to facilitate their rehabilitation
and social integration (Mental Health Law 36, 1998, Portugal).
The law in Brazil simply states that a person has the right to be treated, preferably in community
mental health facilities (Mental Health Law No 10.216, 2001 Brazil), while in Rio Negro
(Argentina) the law states, Hospitalization shall be a last resort, all other treatment options
having been exhausted In all cases, length of stay shall be as short as possible. Referring to
previously hospitalized patients, this law states recovery of their identity and dignity and respect
for patients with mental disorders, translated into their reintegration in the community, is the
ultimate aim of this Act and all actions prescribed by it. (Promotion of Health Care and Social
Services for Persons with Mental Illness Act 2440, 1991 Rio Negro, Argentina.). Such a provision
requires that health authorities responsible for mental health services establish a range of
community-based facilities of adequate quality and accessible to persons with mental disorders.
If this is not done, there is recourse to a court of law.
Mental health legislation can thus promote the development of community-based treatment
facilities in countries or areas where there are few or none available. A number of countries
stipulate which community services must be made available. In Jamaica, for example, the law
states, The community mental health service shall undertake the provision of
a) services to outpatient psychiatric clinics in health centres and general hospitals;
b) rehabilitation services for persons after their discharge from a psychiatric facility;
c) supervised home care and support for persons with mental disorders; and
d) services for the promotion of mental health (Mental Health Act, 1997, Jamaica).
31
Another means of promoting community-based care and rehabilitation is by having laws that
prohibit involuntary admissions for periods longer than is absolutely necessary in the
circumstances (see subsection 8.3 below). In some highly exceptional circumstances, it may be
necessary to continue involuntary admissions for longer periods than is usually required, but then
it has to be conclusively demonstrated that the original conditions that led to the involuntary
admission are still evident. The absence of aftercare facilities cannot generally be adequate
justification for continued involuntary admission. Aftercare and rehabilitation services are an
integral part of mental health care and treatment, and therefore it is important that legislation
include provisions for developing such services as part of promoting access to care.
Access to mental health care: Key issues
Improving access to mental health care is an important function of legislation. This entails
increasing the availability of services, improving financial and geographical accessibility,
and providing services that are acceptable and of adequate quality.
In some countries it may be possible to include specific provisions for the allocation of
resources and funding of mental health services. Where this is possible, it is advisable to
indicate where resources should be spent, thereby enabling adequate provision in areas
such as community mental health care and prevention and promotion programmes.
Most mental health legislation does not deal with funding directly. Laws can, nevertheless,
influence allocation of resources; for example, by including a provision related to the need
for equity with physical health, specifying new service requirements which may necessitate
additional funding or the redirecting of existing funds, and/or stating the need for the
establishment of mental health review boards or tribunals.
Legislation can promote the introduction of mental health interventions into primary health
care settings, thereby increasing access to care for underserved populations, and reducing
the stigma associated with mental disorders.
By laying down criteria for needs-based allocation of services, mental health law can help
reduce geographical and segmental disparities in service provision.
Legislation can also improve access to psychotropic drugs by, for example: including a
provision concerning equity with physical health; specifically stating that adequate
provisions must be made for psychiatric medications on the country's essential drugs list;
and permitting general health practitioners and other medical specialists with appropriate
training to prescribe these medications.
Mental health law should also promote access to psychosocial interventions such as
counselling, different psychotherapies and vocational rehabilitation.
Aftercare and rehabilitation services are an integral part of mental health care and
treatment, and therefore it is important that legislation include provisions for developing
such services as part of promoting access to care.
In countries that have public or private health insurance schemes, legislation should ensure
that people with mental disorders are able to obtain adequate insurance coverage for the
treatment of both mental and physical conditions.
By putting into effect the principle of least restrictive alternative, legislation can promote
community-based care for mental disorders and reduce involuntary admissions to mental
health facilities, particularly long-stay admissions to mental institutions.
5. Rights of users of mental health services
This section discusses important rights of users of mental health services that should be formally
protected by legislation. Some of these rights (e.g. confidentiality) are not specific to users of
mental health services; they apply equally to users of other health services. Persons with mental
disorders, however, may require special and additional protection in view of a history of human
rights abuses, stigma and discrimination and, at times, due to the peculiarities of mental
disorders. People with mental disorders are sometimes treated as non-persons, akin to the
way children or worse, animals are treated. They are often considered to lack adult decision-
making capacity, which results in a total disregard for their feelings and human dignity.
32
The user rights discussed below apply equally to users of all types of mental health services. A
number of mental health laws specify the rights of people with mental disorders (e.g. Brazil,
Lithuania, Portugal, the Russian Federation, South Africa, The former Yugoslav Republic of
Macedonia and many others). In this section, some, though clearly not all, of the most important
rights are highlighted and discussed.
5.1 Confidentiality
MI Principles: Confidentiality
The right of confidentiality of information concerning all persons to whom the present
Principles apply shall be respected.
(Principle 6, MI Principles)
Persons with mental disorders have the right of confidentiality of information about themselves
and their illness and treatment; such information should not be revealed to third parties without
their consent.
Mental health professionals are bound by professional codes of conduct that generally include
rules for confidentiality. All professionals involved in the care of persons with mental disorders
have a duty to prevent any breach of confidentiality. It is important that all members of the mental
health team be aware of the rules that bind them to maintaining confidentiality. Authorities in
charge of mental health facilities should also make sure that adequate processes are in place to
safeguard the confidentiality of persons with mental disorders. This means having an effective
system in place so that only authorized individuals have access to patients clinical notes or other
data-recording mechanisms such as electronic databases.
Mental health legislation may also protect confidentiality by providing for sanctions and penalties
for breaches of confidentiality, either by professionals or mental health facilities. Wherever
possible, remedies other than legal prosecution, such as education of the person and
appropriate administrative procedures, should be used where there has been disregard for
patients confidentiality. Nonetheless, in certain exceptional cases criminal sanctions may be
necessary.
There are a few exceptional instances when confidentiality may be breached. Legislation may
specify the circumstances when information on mental health patients may be released to other
parties without the prior consent of the user. These exceptions may include situations such as
life-threatening emergencies or if there is likelihood of harm to others. The law may also wish to
cover circumstances such as prevention of significant morbidity or suffering. However, the
information disclosed should be limited only to that required for the purpose at hand. Also, when
courts of law require the release of clinical information to judicial authorities (in criminal cases, for
example), and if the information is pertinent to the particular case, mental health professionals
are obliged to provide the information required. There are other complicated issues concerning
the need to maintain confidentiality and the need to share certain information with primary care-
givers who are often family members (discussed in section 6 below). Legislation may ensure that
patients and their personal representatives have the right to ask for judicial review of, or appeal
against, decisions to release information.
5.2 Access to information
Persons with mental disorders should have a statutory right to free and full access to their clinical
records maintained by mental health facilities and mental health professionals. This right is
protected by general human rights norms, such as Article 19 of the ICCPR and the MI Principles.
33
MI Principles: Access to information
1. A patient shall be entitled to have access to the information concerning the patient in his
or her health and personal records maintained by a mental health facility. This right may be
subject to restrictions in order to prevent serious harm to the patients health and avoid
putting at risk the safety of others. As domestic law may provide, any such information not
given to the patient should, when this can be done in confidence, be given to the patients
personal representative and counsel. When any of the information is withheld from a patient,
the patient or the patients counsel, if any, shall receive notice of the withholding and the
reasons for it and it shall be subject to judicial review.
2. Any written comments by the patient or the patients personal representative or counsel
shall, on request, be inserted in the patients file.
(Principle 19(1) and (2), MI Principles)
It is possible that in exceptional situations, revealing clinical records of a person may put the
safety of others at risk or cause serious harm to that persons mental health. For example, clinical
records sometimes contain information from third parties, such as relatives or other
professionals, about a severely disturbed patient, which, if revealed to that patient at a particular
time may cause a serious relapse or, worse still, cause the patient to do harm to himself or
herself or to others. Many jurisdictions therefore give professionals the right (and duty) to
withhold such parts of records. Normally, withholding information can only be on a temporary
basis, until such time as the persons are able to deal with the information rationally. Legislation
may ensure that patients and their personal representatives have the right to ask for judicial
review of, or appeal against, decisions to withhold information.
Patients and their personal representatives may also have the right to request that their
comments be inserted in the medical records without in any way altering the existing records.
Legislation (or regulations) may outline the procedure for patients to exercise their right of access
to information. This may include:
the procedure for making an application for access to information;
who is permitted to make such an application;
the duration of time in which the mental health facility must make such records available
upon receipt of the application;
professionals who should review the records before they are made available to the patient
and/or their personal representatives and certify which parts should not be made available (if
any), and their reasons for this;
when only partial records are given to the patients and/or their personal representative, the
reasons for not providing the full record should be conveyed to them;
set out the exceptional circumstances when access to information may be denied.
It is also important that health facilities have a staff member available to review and explain the
information in the patients file or record to the patient and/or legal representative.
5.3 Rights and conditions in mental health facilities
Persons with mental disorders residing in mental health facilities are often subject to poor living
conditions, such as lack of or inadequate clothing, poor sanitation and hygiene, insufficient and
poor quality food, lack of privacy, being forced to work, or being subject to physical, mental and
sexual abuse from other patients and staff (see Chapter 1, subsection 3.2). Such conditions
violate internationally agreed norms for rights and conditions in mental health facilities.
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MI Principles: Rights and conditions in mental health facilities
1. Every patient in a mental health facility shall, in particular, have the right to full respect for
his or her:
(a) Recognition everywhere as a person before the law;
(b) Privacy;
(c) Freedom of communication, which includes freedom to communicate with other persons
in the facility; freedom to send and receive uncensored private communications; freedom
to receive, in private, visits from a counsel or personal representative and, at all
reasonable times, from other visitors; and freedom of access to postal and telephone
services and to newspapers, radio and television;
(d) Freedom of religion or belief.
2. The environment and living conditions in mental health facilities shall be as close as possible
to those of the normal life of persons of similar age and in particular shall include:
(a) Facilities for recreation and leisure activities;
(b) Facilities for education;
(c) Facilities to purchase or receive items for daily living, recreation and communication;
(d) Facilities, and encouragement to use such facilities, for a patients engagement in active
occupation suited to his or her social and cultural background, and for appropriate
vocational rehabilitation measures to promote reintegration in the community. These
measures should include vocational guidance, vocational training and placement services
to enable patients to secure or retain employment in the community.
3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible
with the needs of the patient and with the requirements of institutional administration, a
patient shall be able to choose the type of work he or she wishes to perform.
4. The labour of a patient in a mental health facility shall not be exploited. Every such patient
shall have the right to receive the same remuneration for any work which he or she does as
would, according to domestic law or custom, be paid for such work to a non-patient. Every
such patient shall, in any event, have the right to receive a fair share of any remuneration
which is paid to the mental health facility for his or her work.
(Principle 13, MI Principles)
5.3.1 Environment
Patients admitted to mental health facilities have the right to be protected from cruel, inhuman
and degrading treatment as set out in Article 7 of the International Convention on Civil and
Political Rights (ICCPR).
The provision of a safe and hygienic environment is a health concern, and critical to a persons
overall well-being. No individual should be subject to unsafe or unsanitary conditions when
receiving mental health treatment.
Some institutions lack adequate food and clothing for the residents, are unable to provide
adequate heat or warm clothing in the winter, have rooms or wards which are not organized to
prevent injury, lack adequate health care and facilities to prevent the spread of contagious
diseases, and may not have adequate facilities to maintain a minimum standard of sanitation and
hygiene. The shortage of staff may lead to practices whereby patients are forced to perform
maintenance work (labour) without pay or in exchange for minor privileges. Such practices
constitute inhuman and degrading treatment and are in breach of Article 7 of the ICCPR.
The MI Principles state that the environment in mental health facilities must be as close as
possible to that of normal life. This includes facilities for leisure, education, religious practice and
vocational rehabilitation.
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Legislation (or accompanying regulations) should set out minimum conditions to be maintained
in mental health facilities to ensure an adequately safe, therapeutic and hygienic living
environment. Legislation can also include provisions for a visiting board to visit the facilities in
order to ensure that these rights and conditions are being respected and upheld (see section 13
below). It is important that the law stipulate the actions the visiting board can take if conditions
are not met, because if they are not given legal powers, such boards can merely become a co-
opted part of an abusive system.
5.3.2 Privacy
Privacy is a broad concept limiting how far society can intrude into a persons affairs. It includes
information privacy, bodily privacy, privacy of communications and territorial privacy. These rights
are frequently violated with regard to people with mental disorders, particularly in psychiatric
facilities. For example, patients may be forced to live for years in dormitory-like wards or human
warehouses that provide little private space. Facilities such as cupboards for storage of
personal belongings may be lacking. Even when patients have a single or double room, staff or
other patients may be able to violate their personal space.
Legislation may make it mandatory for the physical privacy of patients to be respected and for
mental health facilities to be structured to make this possible. However, this may be difficult in
low-income countries with resource limitations; in such instances, the previously established
principle of parity with other health care should be a first step. Even with parity, problems are
likely to persist. This is because conditions in many general hospitals in developing countries are
far below acceptable privacy standards, and because conditions in chronic care situations
(where privacy is the most problematic) need to be very different from those in acute care.
Clearly, the privacy requirements in a facility that is akin to a persons home are very different from
those required for a short-term hospital stay.
In countries where there are large numbers of people in institutional care and large numbers of
individuals in wards, it is necessary to move towards privacy objectives and measure the
progressive realization of these rights. For example, in institutions where several people share a
room, even the provision of a private room in which to entertain is a step towards the realization
of greater privacy rights. Moreover, if adequate services are provided in the community,
deinstitutionalization may in itself become a means towards many people obtaining greater
privacy through discharge from crowded and impersonal hospital conditions.
However, it is important to note that in mental health facilities the right to privacy does not mean
that, in particular circumstances such as those involving a suicidal patient, that person cannot
be searched or continually observed for his or her own protection. In these circumstances, the
limitation on privacy needs to be carefully considered against the internationally accepted right.
5.3.3 Communication
Patients, especially those admitted involuntarily, have the right to communication with the
outside world. In many institutions, intimate meetings with family, including ones spouse and
friends, are restricted. Communication is often monitored, and letters opened and sometimes
censored. Legislation can ban such practices in mental health facilities. However, as with
confidentiality and access to information (discussed above) there may be certain exceptional
circumstances in which communication too needs to be restricted. If it is reasonably
demonstrated that failure to restrict communications would be harmful to the patients health or
future prospects, or that such communications would impinge on the rights and freedoms of
other people, then it may be reasonable to restrict those communications. For example, when a
patient makes repeated unpleasant telephone calls or sends letters to another person, or when
a patient with a depressive illness writes and intends to send a letter of resignation to an
employer. Legislation can set out the exceptional circumstances, as well as stipulating the right
of people to appeal these restrictions.
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5.3.4 Labour
Legislation can ban the use of forced labour in mental health facilities. This includes situations
where patients are forced to work against their wishes (for example, due to staff shortages within
the facility), or are not appropriately and adequately remunerated for work performed, and where
patients are made to perform the personal work of the institutions staff in return for minor
privileges.
Forced labour should not be confused with occupational therapy. Nor should it be likened to
situations where, as part of a rehabilitation programme, patients must make their own beds or
cook food for people in their facility. However, there are certain grey areas, and any legislation
should strive to provide as much clarity on these issues as possible.
5.4 Notice of rights
Although legislation may provide many rights to persons with mental disorders, they are
frequently unaware of their rights and thus unable to exercise them. It is therefore essential that
legislation include a provision for informing patients of their rights when interacting with mental
health services.
MI Principles: Notice of Rights
1. A patient in a mental health facility shall be informed as soon as possible after admission, in a
form and language which the patient understands, of all his or her rights in accordance with these
Principles and under domestic law, which information shall include an explanation of those rights
and how to exercise them.
2. If and for so long as a patient is unable to understand such information, the rights of the
patient shall be communicated to the personal representative, if any and if appropriate, and to
the person or persons best able to represent the patients interests and willing to do so.
(Principle 12(1) and (2), MI Principles)
Legislation can ensure that patients are given information about their rights on admission to a
mental health facility, or as soon after the admission as the patients condition permits. This
information should include an explanation of what these rights mean and how they may be
exercised, and be conveyed in such a way that patients are able to understand it. In countries
where various languages are spoken, the rights should be communicated in the persons
language of choice.
An example of a rights document Your Rights as a Client or Patient, of the Connecticut
Department of Mental Health & Addiction Services is presented in Annex 6. Annex 7 is a
summary of a patients rights document given to all mental health patients in Maine, USA.
It must be emphasized, however, that the levels of literacy and understanding of technical terms
and procedures are critical, and the examples provided may be inappropriate in many countries.
Nonetheless, countries can develop pamphlets, posters and tapes, for example, or use other
mechanisms that are easily understood and reflect the rights of people in their own country.
Legislation may make provisions for communicating these rights to personal representatives
and/or family members in the case of patients who lack the capacity to understand such
information.
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Rights of users of mental health services: Key issues
Confidentiality
Legislation must ensure patients rights to confidentiality are respected.
Legislation should specify that all information obtained in a clinical context (i.e. in the
context of care and treatment in any setting) is confidential and that all concerned have a
responsibility to maintain confidentiality. This would necessarily include all persons within
facilities and services providing care and treatment to people with mental disorders.
Legislation may provide for penalties and sanctions for wilful breach of confidentiality by
professionals and/or mental health facilities.
Confidentiality provisions of legislation must apply equally to information stored in
electronic/digital format, including national and regional databases, as well as resource
book records containing personal information about persons with mental disorders.
Legislation may outline the exceptional circumstances when confidentiality may be legally
breached. These could include:
a) life threatening emergencies when the information is urgently needed to save lives;
b) significant likelihood of serious harm or injury to the person concerned or to others;
c) prevention of significant morbidity and suffering;
d) in the interests of public safety;
e) when ordered by courts to do so, (in criminal cases, for example).
Legislation could provide that patients and their personal representatives have the right to
ask for judicial review of, or appeal against, decisions to release information.
Access to information
Legislation should ensure that people with mental disorders have the right to free and full
access to their clinical records.
Legislation should also specify the exceptional circumstances when access to this
information may be restricted (when revealing clinical records may put the safety of others
at risk, or cause serious harm to the persons mental health).
The withholding of information should only be temporary, until such time as the person is
more able to rationally deal with the information.
Legislation could stipulate that patients and their personal representatives have the right to
ask for judicial review of, or appeal against, decisions to withhold information.
Patients and their personal representatives may also have the right to request that their
comments be inserted in the medical records without in any way altering the existing
records.
Legislation (or regulations) may outline the procedure for patients to exercise their right of
access to information
It is also important that health facilities have a staff member available to review and
explain the information that is in the patients file or record to the patient and/or legal
representative.
Rights and conditions in mental health facilities
Legislation should guarantee patients in mental health facilities protection from cruel, inhuman
and degrading treatment. In particular, legislation may specify that:
a) there is provision of a safe and hygienic environment;
b) adequate sanitary conditions are maintained in the facilities;
c) the living environment should include facilities for leisure, recreation, education and
religious practice;
d) adequate provision is made for vocational rehabilitation (this would help patients to
prepare for community living once they leave the facility);
e) a right to interaction with members of the same and opposite sex;
f) peoples environment is structured so that patients privacy is protected as far as
possible;
g) the patients have free and unrestricted communication with the outside world,
including receiving visits, letters and other communications from friends, family and
others (any exceptional situations in which communication could be restricted should
be stated in the law);
h) patients must not be forced to undertake work they do not wish to do, and when they
do take up work, this should be appropriately remunerated.
1
Whanau (extended family groups), hapu (sub-tribes, formed of several whanau), and iwi (tribes, made up of a number of hapu).
38
Notice of rights
Legislation should include a provision for informing patients of their rights at the earliest
possible time, when interacting with mental health services. Notifying them of their rights
should take place within the shortest delay possible.
This information should be conveyed in such a way that patients are able to understand it.
Legislation may also make provisions for communicating these rights to personal
representatives and/or family members in the case of patients who lack the capacity to
understand such information.
6. Rights of families and carers of persons with mental disorders
The roles of families or other carers of people with mental disorders vary significantly from
country to country and from culture to culture. Nonetheless, it is common for families and carers
to assume many responsibilities for looking after persons with mental disorders. These include
housing, clothing and feeding them, and ensuring that they remember to take their treatment.
They also make sure these persons avail of care and rehabilitation programmes and assist them
in following through with these. They often bear the brunt of the persons behaviour when he or
she is ill or relapses, and it is usually the caregivers/family members that fundamentally love, care
and worry about the person with the mental disorder. Sometimes they too become targets of
stigma and discrimination. In some countries, families and carers also carry the legal
responsibility for third-party liability arising from actions of persons with mental disorders. The
important role of families needs to be recognized in legislation.
Family members and carers need information about the illness and treatment plans to be better
able to look after their ill relatives. Legislation should not arbitrarily refuse information merely on
grounds of confidentiality though the extent of an individuals right to confidentiality is likely to
vary from culture to culture. For instance, in some cultures a patients refusal to allow information
to be released to family members or carers would need to be fully respected, while in others the
family may be regarded as a unified, structured unit, and confidentiality may extend to culturally
determined members of that family. It is likely, in these situations, that patients themselves are
more accepting of the need to provide family members with information. In countries where there
is more emphasis on the individual, as opposed to the family, it is more likely that the individual
himself/herself may be less inclined to share information. Many variations and gradations are
possible depending on culturally accepted practices. One position could be, for example, that
family members who have ongoing responsibility for the care of a patient may receive some
information required for the accomplishment of their supportive role in the patients life, but not
about other clinical or psychotherapeutic issues.
The right to confidentiality is not in dispute, however. In legislation, this right should be
interpreted at the country level taking local cultural realities into account. In New Zealand, for
example, under the Mental Health (Compulsory Assessment and Treatment) Amendment Act
1999, Section 2, the legislative powers must be exercised or the proceedings conducted:
a) with proper recognition of the importance and significance to the person of the persons ties
with his or her family, whanau, hapu, iwi,
1
and family group; b) with proper recognition of the
contributions those ties make to the persons well-being; and c) with proper respect for the
persons cultural and ethnic identity, language, and religious or ethical beliefs.
Families can play an important role in contributing to the formulation and implementation of a
treatment plan for the patient, especially if the patient is incapable of doing it alone. The Mauritian
law states that the patient or next of kin may participate in the formulation of the treatment
plan (Mental Health Care Act, Act 24 of 1998, Mauritius).
Legislation can also ensure involvement of families in many aspects of mental health services
and legal processes. For example, family members may have the right to appeal against
involuntary admission and treatment decisions on behalf of their relative, if the latter lacks the
capacity to do so himself/herself. Similarly, they may be able to apply for the discharge of a
39
mentally ill offender. Countries may also choose to legislate that family groups should be
represented on review bodies (see subsection 13.2.1 below).
Legislation can also ensure that family members are involved in the development of mental
health policy and legislation, as well as mental health service planning. In the United States,
Public Law 99-660, the Health Care Quality Improvement Act (1986), mandates that each state
should establish a planning council that must consist of at least 51% users and relatives. This
planning council is to be responsible for the creation and ongoing monitoring of an annual state-
wide service system plan that must be approved by the council.
An exhaustive coverage of all situations where families involvement becomes necessary is
impossible. Instead, legislation can codify the principle that family members and family
organizations are important stakeholders in the mental health system, and may therefore be
represented in all forums and agencies where strategic decisions regarding mental health
services are made.
Families and carers of people with mental disorders: Key issues
It is common for families and carers to assume major responsibility for looking after
persons with mental disorders, and legislation needs to reflect this.
Legislation should not arbitrarily refuse information merely on the ground of
confidentiality though the extent of an individuals right to confidentiality is likely to vary
from culture to culture.
Families and carers can play an important role in contributing to the formulation and
implementation of a treatment plan for the patient, especially if the patient is incapable of
doing this alone.
Legislation can ensure that families and carers have access to the support and services they
require in caring for a person with a mental disorder.
Legislation can ensure involvement of families and carers in many aspects of mental health
services, as well as the legal processes such as involuntary admission and appeal.
Legislation can also ensure that family members and carers are involved in the development
of mental health policy and legislation, as well as mental health service planning.
7. Competence, capacity and guardianship
Most persons with mental disorders retain the ability to make informed choices and decisions
regarding important matters affecting their lives. However, in those with severe mental disorders,
this ability might be impaired. In these circumstances, legislation must have suitable provisions
that allow managing the affairs of people with mental disorders in their best interests.
Two concepts that are central to decisions about whether or not a person may make choices
concerning various issues are competence and capacity. These concepts affect treatment
decisions in civil and criminal cases, and the exercise of civil rights by persons with mental
disorders. Legislation may therefore need to define capacity and competence, state the criteria
for determining them, lay down the procedure for assessing them, and identify the actions that
need to be taken when there is a finding of lack of capacity and/or competence.
7.1 Definitions
There is a tendency to use the terms capacity and competence interchangeably in relation
to mental health; however, they are not the same. Generally, capacity refers specifically to the
presence of mental abilities to make decisions or to engage in a course of action (see subsection
3.3 concerning the concept of mental incapacity), while competence refers to the legal
consequences of not having the mental capacity.
40
In these definitions, capacity is a health concept, whereas competence is a legal concept.
Capacity refers to individual levels of functioning, and competence to their impact on legal and
social standing. For example, a person may lack mental capacity due to a serious mental
disorder, and this may result in being found not competent to make financial decisions.
This distinction between capacity and competence is not universally accepted. In some legal
systems, incapacity is used to mean legal incapacity, such as when minors below a certain age
are not allowed to exercise certain rights or privileges. Competence, on the other hand, is a legal
term applied to individuals who cannot understand the nature and purpose of the decision to be
taken. In these cases, both the terms can be viewed as legal concepts.
This Resource Book uses the distinction between capacity as a health concept and competence
as a legal concept when discussing issues relating to capacity and competence.
7.2 Assessment of incapacity
Ordinarily, there is a presumption of capacity and, consequently, of competence. Thus, a person
is assumed to be capable and competent to make decisions unless proven otherwise. The
presence of a major mental disorder does not in and of itself imply incapacity in decision-making
functions. Hence, the presence of a mental disorder is not the overall determining factor of
capacity, and certainly not of competence.
In addition, despite the presence of a disorder that may affect capacity, a person may still have
the capacity to carry out some decision-making functions. Capacity and competence are thus
function-specific. Therefore, because capacity may fluctuate from time to time, and is not an all
or nothing concept, it needs to be considered in the context of the specific decision or function
to be accomplished.
Some examples of specific capacities (which differ from country to country) are the following:
7.2.1 Capacity to make a treatment decision
The person must have the ability to: (a) understand the nature of the condition for which the
treatment is proposed; (b) understand the nature of the proposed treatment; and (c) appreciate
the consequences of giving or withholding consent to treatment.
7.2.2 Capacity to select a substitute decision-maker
The person must have the ability to: (a) understand the nature of the appointment and the duties
of the substitute decision-maker; (b) understand the relationship with the proposed substitute;
and (c) appreciate the consequences of appointing the substitute decision-maker.
7.2.3 Capacity to make a financial decision
The person must have the ability to: (a) understand the nature of the financial decision and the
choices available; (b) understand the relationship to the parties to, and/or potential beneficiaries
of, the transaction; and (c) appreciate the consequences of making the financial decision.
A finding of lack of capacity should be time-limited (i.e. it will have to be reviewed from time to
time), because a person may regain some or complete functionality over time, either with or
without treatment of the mental disorder.
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7.3 Determining incapacity and incompetence
Determination of incapacity may be made by a health professional, but a judicial body would
determine incompetence. Capacity is the test for competence, and people should be judged as
lacking competence only if they are actually incapable of making specific kinds of decisions at a
specific time.
Mental health legislation (or other relevant legislation) can lay down the procedure for determining
a persons competence. For example:
a) As competence is a legal concept, a judicial body would determine this.
b) Ideally, a legal counsel should routinely be made available to a person whose competence is
in question. Where a person is unable to afford a counsel, legislation may require that
counsel be provided to the beneficiary free of charge.
c) Legislation should ensure there is no conflict of interest for the counsel. That is, the counsel
representing the concerned person should not also be representing other interested parties,
such as the clinical services involved in the care of the concerned person and/or the family
members of the concerned person.
d) Legislation may have provisions to appeal to a higher court against the decision by the
concerned person, the counsel, family members or clinical team.
e) Legislation should contain a provision for automatic review, at specified periodic intervals, of
the finding of lack of competence.
In less developed countries it may not be possible to immediately legislate for all these
requirements; however, depending on the resources available, as many of these as possible may
be included in legislation.
7.4 Guardianship
In certain circumstances where, due to a mental disorder, persons are unable to make important
decisions and are incapable of managing their lives, it is important to appoint another person
who is able to act on their behalf and in the best interest of the person. In the New South Wales
Guardianship Act (No 257 of 1987) a person in need of guardianship means a person who has
a disability and who, by virtue of that fact, is totally or partially incapable of managing his or her
person. Although the concerned person can apply for guardianship, it is most often a family
member, or others who care for the person with a mental disorder, who identify the need for
guardianship and who make the necessary application for an assessment to determine whether
a guardian should be appointed.
Whether or not to appoint a guardian is a complex decision, and consideration must be made
within the context of the rights of persons to have as much control of their own lives as possible.
Appointing a guardian does not imply that the person loses all decision-making powers, their
ability to act for themselves in all circumstances and their dignity. For example, in the New South
Wales Guardianship Act (No 257 of 1987), everyone exercising functions under the Act are
obliged, among other things, to take cognisance of the welfare and interests of persons under
guardianship; [and to ensure] that the freedom of decision and freedom of action should be
restricted as little as possible; that persons should be encouraged, as far as possible, to live a
normal life in the community; that the views of persons should be taken into consideration; that
the persons family relationships and cultural and linguistic environments should be recognised;
that such persons should, as far as possible, be self-reliant in matters relating to their personal,
domestic and financial affairs and should be protected from neglect, abuse and exploitation.
Other alternatives to guardianship that could be considered in certain situations include power
of attorney and advanced directives (see also the discussion on proxy consent for treatment in
subsection 8.3.6 below).
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MI Principles: Guardianship
Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any
decision that, in consequence of such incapacity, a personal representative shall be appointed,
shall be made only after a fair hearing by an independent and impartial tribunal established by
domestic law. The person whose capacity is at issue shall be entitled to be represented by a
counsel. If the person whose capacity is at issue does not himself or herself secure such
representation, it shall be made available without payment by that person to the extent that he
or she does not have sufficient means to pay for it. The counsel shall not in the same
proceedings represent a mental health facility or its personnel and shall not also represent a
member of the family of the person whose capacity is at issue unless the tribunal is satisfied
that there is no conflict of interest. Decisions regarding capacity and the need for a personal
representative shall be reviewed at reasonable intervals prescribed by domestic law. The
person whose capacity is at issue, his or her personal representative, if any, and any other
interested person shall have the right to appeal to a higher court against any such decision.
(Principle 1(6), MI Principles)
Whether a guardianship provision should be part of mental health law or have a separate law is
another decision for individual countries to make. In Australia, for example, there is a detailed
separate Guardianship Act (Guardianship Act, No 257 of 1987, Australia), whereas in Kenya the
Mental Health Act (The Mental Health Act, 248 of 1991, Kenya) includes a section on
guardianship.
If individuals are considered legally not competent and/or unable to manage their own affairs,
legislation needs to make provisions for the appointment of a person or persons
(guardian/trustee) to look after their interests. Since the finding of lack of competence is a legal
issue, appointment of a guardian should be made by a judicial body.
Legislation may state the procedure to be followed for appointment of a guardian, the duration
of such appointment and a process for review of the decision, as well as delineating the duties
and responsibilities of the guardian. Legislation may, in addition, determine the extent and scope
of the decision-making powers of the guardian. In many countries, the power of guardians is
limited to only those subjects or areas in which a person is shown to truly lack legal competence.
These laws strive to permit individuals with mental disorders to retain the ability to make most
decisions about themselves, even when they cannot make all such decisions. Moreover,
legislation may be designed specifically to pursue the best interests of the individual and to
encourage the person to develop his/her capacities to the greatest extent possible (for example,
see the New Zealand Protection of Personal and Property Rights Act, 1988).
Specifying the penalties if guardians fail to perform their duties would strengthen legislation.
Legislation may also give the affected person the right to a judicial review of the decision to
appoint a guardian. Lastly, legislation should contain provisions and procedures for discharge
from guardianship when the affected person regains competence in the future.
Competence, capacity and guardianship: Key issues
Competence and capacity
Legislation may need to define capacity and competence, state the criteria for determining them,
lay down the procedure for assessing them, and identify the actions that need to be taken when
there is a finding of lack of capacity and/or competence.
Generally, capacity refers specifically to the presence of mental abilities to make decisions or to
engage in a course of action, while competence refers to the legal consequences of not having the
mental capacity.
43
The presence of a major mental disorder does not in and of itself imply incapacity in decision-
making functions, and is therefore not the overall determining factor of capacity or competence.
Despite the presence of a disorder that may affect capacity, a person may still have the capacity to
carry out some decision-making functions.
Because capacity may fluctuate from time to time, and may improve partially or fully in time, it
needs to be related to the specific decision or function to be accomplished.
Determination of incapacity may be made by a health professional, but a judicial body would
determine incompetence.
Capacity is the test for competence, and people should not be judged as lacking competence only
because they are incapable of making specific kinds of decisions at a specific time.
Guardianship
Legislation may:
a) Determine the appropriate authority for appointment of a guardian. This may be the judicial
body making the decision regarding competence (see above) or a separate judicial body such
as a higher court.
b) Lay down the procedure for appointment of a guardian.
c) Specify the duration of the appointment.
d) Delineate the duties and responsibilities of the guardian.
e) Specify the penalties civil, criminal or administrative for failure of the guardian to perform
the statutory duties.
f) Determine the extent and scope of the decision-making powers of the guardian. Any order must
be tailored to ensure that it best suits the interests of the person who is subject to it. Through
this, individuals with mental disorders can retain the ability to make most decisions about
themselves, even when they cannot make all such decisions.
g) Make provision for patients to appeal against the appointment of a guardian.
h) Make provision for the review of guardianship and a provision for discharge from guardianship
if the patient recovers competence with or without treatment.
8. Voluntary and involuntary mental health care
8.1 Voluntary admission and voluntary treatment
Free and informed consent should form the basis of the treatment and rehabilitation of most
people with mental disorders. All patients must be assumed initially to have capacity and every
effort should be made to enable a person to accept voluntary admission or treatment, as
appropriate, before implementing involuntary procedures.
MI Principles: Informed consent
No treatment shall be given to a patient without his or her informed consent, except as
provided for in paragraphs 6, 7, 8, 13 and 15 [of the present principles].
(Principle 11(1), MI Principles)
To be valid, consent must satisfy the following criteria (MI Principle 11, see Annex 3):
a) The person/patient giving consent must be competent to do so, and competence is
assumed unless there is evidence to the contrary.
b) Consent must be obtained freely, without threats or improper inducements.
c) There should be appropriate and adequate disclosure of information. Information must be
provided on the purpose, method, likely duration and expected benefits of the proposed
treatment.
d) Possible pain or discomfort and risks of the proposed treatment, and likely side-effects,
should be adequately discussed with the patient.
e) Choices should be offered, if available, in accordance with good clinical practice; alternative
44
modes of treatment, especially those that are less intrusive, should be discussed and offered
to the patient.
f) Information should be provided in a language and form that is understandable to the patient.
g) The patient should have the right to refuse or stop treatment.
h) Consequences of refusing treatment, which may include discharge from the hospital, should
be explained to the patient.
i) The consent should be documented in the patient's medical records.
The right to consent to treatment implies also the right to refuse treatment. If a patient is judged
as having the capacity to give consent, then refusal of such consent must also be respected.
If admission is needed, legislation should aim to promote and facilitate voluntary admission to
a mental health facility, after obtaining informed consent. This objective can be met either by (i)
specifically stating that people requiring mental health services should be provided with those
services including admission when required, (ii) or simply by omission, thus regarding mental
health in the same way as any other disorder or illness. There are advantages and
disadvantages to these alternatives. With the former, by stating the right to treatment and
admission, the law obviates any ambiguity with regard to whether or not people with mental
disorders can be treated/admitted voluntarily. It also offers the opportunity for patients to assert
that they are indeed acting voluntarily. Given the evidence of past neglect and low levels of
uptake of mental health care, such an approach may encourage more people to obtain care
and treatment.
MI Principles: Voluntary admission and treatment
Where a person needs treatment in a mental health facility, every effort shall be made to avoid
involuntary admission.
(Principle 15(1), MI Principles)
On the other hand, segregating mental health issues from other health problems can stigmatize
users, and it weakens the argument that mental disorders should be treated in the same way as
other health problems. If voluntary mental health care and treatment are not specifically
mentioned in legislation, they will be regarded in the same way as other health care.
Voluntary admission brings with it the right to voluntary discharge from mental health care
facilities. However, legislation relating to discharge is complicated by the fact that many
jurisdictions empower authorities to override this right to leave under certain circumstances. The
MI Principles state that patients not admitted involuntarily have the right to leave the facility at
any time unless the criteria for involuntary admission are met.
Legislation should permit authorities to prevent self-discharge by voluntary patients only if all the
conditions that warrant involuntary admission are met. All the procedural safeguards of
involuntary admission should apply. It is recommended that legislation incorporate a right for
voluntary patients to be informed at the time of admission that they may only be denied the right
to leave if they meet conditions for an involuntary admission at the time when they wish to
discharge themselves.
A problem which sometimes arises is when patients who lack the capacity to consent are
voluntarily admitted to a hospital simply because they do not protest against the admission
(see also subsection 8.2). One example of this would be a patient who is admitted voluntarily
but has no understanding of either the fact or the purpose of the admission. Another group of
patients that runs this risk of so-called voluntary admission is those with mental retardation.
Other people may accept treatment or admission without protest merely because they are
intimidated or because they do not realize they have the right to refuse. In these cases, their lack
of protest should not be construed as consent, since consent must be voluntary and informed.
45
The concept of voluntary precludes the use of coercion; it implies that choices are available
and that the individual has the ability and right to exercise that choice. One or all of these
conditions would be violated in the examples given above. In Brazil, the law states that A person
who requests voluntary internment or who consents to internment shall be required to sign, at
the time of his or her admission, a declaration signifying that he or she has chosen this regime
of treatment (Mental Health Law No 10.216 of 2001, Brazil).
Voluntary admission & voluntary treatment: Key issues
Where a person needs inpatient treatment, legislation should support voluntary admission
and every effort shall be made to avoid involuntary admission.
If the law permits the authorities to retain voluntary patients when they attempt to leave,
this should only be possible if the criteria for involuntary admission are met.
On admittance to the mental health facility, voluntary patients may be informed of the fact
that mental health professionals of the facility may exercise the authority to prevent their
discharge should they meet involuntary admission criteria.
Voluntary patients must be treated only after obtaining informed consent.
Where the patient has the capacity to give informed consent, such consent is a prerequisite
for treatment.
Given the fact that in many countries not all persons who have been admitted as voluntary
patients are strictly voluntary, legislation may make provision for an independent body (see
section 13) to periodically review long-stay voluntary patients, assess their condition and
situation and make appropriate recommendations.
8.2 Non-protesting patients
Legislation in some countries makes provision for users who are incapable, due to their mental
health status, to give consent to treatment and/or admission, but who do not refuse mental
health interventions. This would include people described in the previous section as not fulfilling
the requirements as voluntary patients, but who also do not meet the criteria for involuntary
admission (for example, people with severe mental retardation). While in some countries the
incapacity legislation linked with comprehensive guardianship laws are able adequately to deal
with people with mental disorders who are unable to give consent but do not refuse
admission/treatment, other countries find it important to legislate in this area. The purpose of this
category is to provide non-protesting patients with safeguards, while at the same time
providing necessary admission and treatment to people unable to give informed consent. It has
the important advantage of ensuring that people who are not resisting treatment are not
incorrectly made either involuntary or voluntary patients; it also helps prevent a potentially huge
increase in the number of people being incorrectly admitted as involuntary patients.
The criteria for being allowed admission and/or treatment are usually less stringent than in the case
of involuntary users. This makes it possible for users who are unable to give informed consent but
who require treatment and admission for their (mental) health to receive necessary care and
treatment even if, for example, they are not a safety risk to themselves or to others. The need for
hospitalization is sometimes regarded as a sufficient criterion. This, or a criterion such as required
for a persons health, is often less demanding than, for example, the criteria for involuntary
admission (see subsection 8.3.2 below). The person making the application for care of a non-
protesting patient is usually a close relative or a person who has the interest of the user at heart.
The use of surrogates for non-protesting patients is common in a number of countries. If users
object to their admission or treatment they must immediately stop being regarded as non-
protesting and the full criteria for determining involuntary admission and treatment must be applied.
It is crucial that the rights of non-protesting patients be protected in a similar manner as those
of involuntary users. For example, an assessment of capacity and suitability may need to be
undertaken, and agreed, by more than one practitioner. Non-protesting patients should, like
46
involuntary users, qualify for mandatory automatic review procedures. This may include initial
confirmation of their status as well as ongoing periodic assessments to determine whether their
condition has changed. If, following their admission/treatment, they regain the capacity to make
informed decisions, they must be removed from this status. Moreover, non-protesting patients
should have the right to appeal their position. Non-protesting patients will also enjoy all other
rights afforded to other patients, such as the right to notification of their rights, to confidentiality,
to adequate standards of care and other rights (see section 5 above).
The fundamental principles of least restrictive environment and in the best interest of the
patient must similarly be applied to non-protesting patients.
Countries that have provision in legislation for non-protesting patients include Australia, which
has a section for informal treatment of patients incapable of consenting (Mental Health Act,
1990, New South Wales, Australia), and South Africa, which makes provision for assisted
users in its Mental Health Care Act (2002). In different legislation, care for non-protesting
patients may be for inpatients only or may also apply to the treatment of outpatients.
Non-protesting patients: Key issues
Legislation in some countries makes provision for users who are incapable, due to their
mental health status, to give consent to treatment and/or admission, but who do not refuse
mental health interventions.
The criteria for being allowed admission and/or treatment are usually less stringent than in
the case of involuntary users (criteria may be, for example, the need for hospitalization
or required for a persons health)
If users object to their admission or treatment, they must immediately stop being regarded
as non-protesting and the full criteria for determining involuntary admission and
treatment must be applied. Similarly, if, following their admission/treatment, they regain
the capacity to make informed decisions, they must be removed from this status.
It is crucial that the rights of non-protesting patients are protected in a similar manner to
those of involuntary users (for example, the right to assessment of capacity, to automatic
review procedures, the right to appeal their status).
Non-protesting patients should also enjoy all other rights afforded to other patients, such as
the right to being informed of their rights, to confidentiality, to adequate standards of care
and other rights.
8.3 Involuntary admission and involuntary treatment
Involuntary, or compulsory, admission to mental health facilities and involuntary treatment are
controversial topics in the field of mental health as they impinge on personal liberty and the right
to choose, and they carry the risk of abuse for political, social and other reasons. On the other
hand, involuntary admission and treatment can prevent harm to self and others, and assist some
people in attaining their right to health, which, due to their mental disorder, they are unable to
manage voluntarily.
Several international human rights documents, such as the MI Principles (1991), European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and The
Declaration of Hawaii (1983), accept the need, at times, for involuntary admission and treatment
of persons with mental disorders. However, it is important to stress that involuntary admission
and treatment is required only for a minority of patients who suffer from mental disorders; in
many instances where patients are admitted and treated involuntarily, if humane treatment and
a proper opportunity for voluntary care were provided, involuntary admission and treatment
could be reduced further.
It is acknowledged that some user and advocacy groups, such as MindFreedom Support
Coalition International, are vehemently opposed to the idea of involuntary treatment, including
the involuntary administration of psychotropic medicines, under any circumstances.
47
The key issue for mental health legislation in this regard is to outline circumstances when
involuntary admission and involuntary treatment are appropriate, and to lay down suitable
procedures. To ensure that rights are adequately protected, this section of legislation usually
requires a fairly detailed exposition of the legal processes, and hence can be somewhat lengthy.
It is not the purpose of this Resource Book to be prescriptive about involuntary admission and
treatment. Rather, it emphasizes recognition for global and cultural differences and, similarly, with
regard to involuntary admission and treatment, it stresses that different cultures, traditions,
economies and human resources are pertinent. But the principles of involuntary admission and
treatment are important, and frameworks can be developed to assist countries to take locally
appropriate legislative decisions.
MI Principles: Involuntary admission and treatment
1. A person may (a) be admitted involuntarily to a mental health facility as a patient; or (b)
having already been admitted voluntarily as a patient, be retained as an involuntary patient in
the mental health facility if, and only if, a qualified mental health practitioner authorized by
law for that purpose determines, in accordance with Principle 4, that person has a mental
illness and considers:
(a) That, because of that mental illness, there is a serious likelihood of immediate or
imminent harm to that person or to other persons; or
(b) That, in the case of a person whose mental illness is severe and whose judgement
is impaired, failure to admit or retain that person is likely to lead to a serious
deterioration in his or her condition or will prevent the giving of appropriate treatment
that can only be given by admission to a mental health facility in accordance with the
principle of the least restrictive alternative.
2. In the case referred to in subparagraph (b), a second such mental health practitioner,
independent of the first, should be consulted where possible. If such consultation takes place,
the involuntary admission or retention may not take place unless the second mental health
practitioner concurs.
3. A mental health facility may receive involuntarily admitted patients only if the facility has
been designated to do so by a competent authority prescribed by domestic law.
(Principle 16 (1) and (3), MI Principles)
8.3.1 Combined versus a separate approach to involuntary admission and involuntary
treatment
Mental health legislation may combine involuntary admission and involuntary medical treatment
into one procedure or it may treat them as separate (see subsection 8.3.7, fig. 1).
Under the combined approach, once patients are admitted involuntarily, they may be treated
involuntarily without having to undertake a separate procedure for sanctioning treatment. Some
family groups, professionals and others have argued that the purpose of involuntary admission
in most instances is to reverse a deteriorating clinical condition. It is asserted that there is no
purpose in admission to hospital if no treatment is provided. In fact, in Portugal, the law states
that compulsory detention may only be determined in cases where it is deemed to be the only
way of guaranteeing that the detained patient is submitted to treatment (emphasis added)
(Mental Health Law No 36, 1998, Portugal) and in Pakistan, the law refers only to admission for
treatment(Mental Health Ordinance for Pakistan, 2001). It is possible, of course, that a patient
may not require medication, but may benefit from less intrusive therapies (such as
psychotherapy, support groups or occupational therapy). Nonetheless, within the single
approach, whether actually provided for or not, medical treatment can be given if admission is
approved.
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This does not imply that in the combined approach the patient cannot play any part in the
treatment plan. For example, the Albanian law states that a person admitted to a psychiatric
institution without consent should be treated with the necessary medical procedures; it further
states that the person or his/her legal representative has the right to complete information on
the therapeutic treatment proposed, including knowing about the side effects and what
alternatives are available (emphasis added) (Law on Mental Health, 1991). Even with involuntary
users subject to a single, combined process, it is good practice for the practitioner to always try
and get cooperation and approval for treatment from the patient.
Under a fully separate approach, the admission and treatment procedures are independent of
each other. First, the person is assessed for involuntary admission, then, if an involuntarily
admitted patient requires involuntary treatment, the treatment need has to be assessed and a
separate procedure for sanctioning such treatment is necessary (see subsection 8.3.7, fig.1).
Many individuals and organizations, especially user groups, object to combining involuntary
admission and involuntary treatment and argue that a persons consent or refusal to admission
and to treatment, are separate issues. Persons may require involuntary admission but not
involuntary treatment, or, indeed, involuntary treatment without having to be placed outside their
homes or communities. Moreover, it is argued that capacity is issue-specific, in that a person
who is judged to be lacking capacity to make decisions regarding admission to a mental health
facility may still retain the ability (capacity) to make decisions regarding treatment. It is agued that
involuntary treatment violates fundamental human rights principles. For example, General
Comment 14 to Article 12 of the ICESCR provides that the right to health includes the right to
be free from non-consensual medical treatment. It is further argued that it is possible that an
independent authority, for example a court or a review board, may commit a person to a
psychiatric facility due to a mental illness, but this same authority, or a separate one, may find
that the person has not lost his/her capacity to make treatment decisions. Assessment to
determine incapacity to consent to treatment is thus necessary. Furthermore, advocates of a
separate approach argue that the provision of two independent procedures for invoking
involuntary admission and involuntary treatment ensures an extra layer of rights protection for
persons with mental disorders.
On the other hand, advocates of the combined approach contend that with the separate
approach there is a risk that if too much time elapses between the two processes, treatment can
be seriously delayed, with detrimental effects for the individual concerned, as well as, possibly,
to health care workers and other patients if the person is highly aggressive. In addition, due to
the unavailability of human and financial resources in many low-income countries, it can be
difficult to institute two separate procedures for involuntary admission and involuntary treatment.
The combined approach does not contradict MI Principle 16(2), which recommends that
Involuntary admission or retention shall initially be for a short period as specified by domestic
law for observation and preliminary treatment pending review of the admission or retention by a
review body (emphasis added).
Another possible variation of the combined and separate approaches, that could incorporate the
advantages of both, is to consider the need for admission and treatment separately, but to
combine the processes for determining and sanctioning them. In other words, the same
practitioner(s), and possibly the same review body (or independent authority), that assesses the
need for admission may also (in the same session) assess whether the person has the capacity
to consent to treatment, and whether involuntary treatment is indeed required. This could lead
to a range of different outcomes (discussed in subsection 8.3.5).
The following subsections discuss the criteria and procedure for involuntary admission and
treatment. Where a combined procedure is utilized, i.e. treatment is provided (as required) as
an integral part of involuntary admission and treatment, it should be read into admission. In
other words, if admission is permitted, then treatment is automatically permitted, though it
should never be given unless clinically required. Where treatment is to be provided as a
49
separate process from admission, the criteria and process for admission are largely the same
as under the combined procedure, but involuntary treatment is considered separately.
8.3.2 Criteria for involuntary admission
Presence of a mental disorder
First and foremost and common to all human-rights-oriented mental health legislation that
deals with involuntary admission there should be proof of the presence of a mental disorder as
defined by internationally accepted standards. However, the type, severity and degree of a
mental disorder qualifying for involuntary admission varies in different jurisdictions. Some
countries allow involuntary admission only for specific mental disorders such as psychotic illness;
others mention severe mental disorder (illness), while still others use the broader definition of
mental disorder as the qualifying criteria for involuntary admission. A crucial issue for national
legislation is to determine whether specific conditions should be included or excluded from
involuntary admission. The more contentious diagnoses include mental retardation, substance
abuse and personality disorder (see section 3 above). Choices in this regard will reflect the values
of a particular country or community.
Serious likelihood of immediate or imminent danger and/or need for treatment
The two most often utilized and probably also the most important grounds for authorizing
involuntary admission of persons with mental disorders are serious likelihood of immediate or
imminent danger and the need for treatment.
Serious likelihood of immediate or imminent danger This criterion can be applied in the best
interests of the patients themselves to prevent harm to themselves, or for the safety of
others. Preventing harm to self, to carers, families and society in general is an important
obligation of the State, and thus it is often a key element of legislation (for information on
predicting dangerousness, see Livesley, 2001; Sperry, 2003).
Need for treatment This criterion, like the dangerousness/safety criteria, solicits a great deal
of controversy. There are a number of organizations and individuals, including users of mental
health services and user groups, who object to this criterion. The MI Principles (Principle 16)
state that involuntarily admission may be considered if, in the case of a person whose
mental illness is severe and whose judgement is impaired, failure to admit or retain that
person is likely to lead to a serious deterioration in his or her condition or will prevent the
giving of appropriate treatment that can only be given by admission to a mental health
facility.
This principle usually includes the concurrent presence of a number of factors. First, the
illness must be severe (issue of definition); secondly, it must be proved that there is
impaired judgement (issue of capacity); and thirdly, there must be reasonable grounds to
suspect that failure to admit the person will lead to serious deterioration in his/her condition
or prevent administering appropriate treatment (prediction of treatment issue).
Admission should include a therapeutic purpose
Persons should be admitted involuntarily only if there is a therapeutic purpose to the admission.
This does not necessarily mean that medication must be provided, as a wide range of
rehabilitative and psychotherapeutic approaches may be implemented. A lack of therapeutic
success does not imply a lack of therapeutic purpose, and involuntary admission can be justified
if the person is receiving therapeutic care, even if the available treatments are not able to
completely cure the persons condition. A person requiring purely custodial care should not be
kept in a psychiatric facility as an involuntary patient.
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When applying the above criteria, it is also important to consider the principle of the least
restrictive environment. In other words, a person may not be admitted if other, less restrictive
alternatives, such as community care, can be utilized.
8.3.3 Procedure for involuntary admission
Mental health legislation usually outlines the procedure to be followed for involuntary admission.
This procedure will vary from country to country. The following section (as with other sections of
this Resource Book) should be read as broad guidelines rather than as recommendations.
Who should conduct the assessment?
As an additional safeguard to protect the rights of those being detained involuntarily, the MI
Principles recommend that two independent medical practitioners who examine the patient
separately and independently conduct the assessment. This is an important principle. However,
in low-income countries with a scarcity of psychiatrists and general medical professionals, and
even in some developed countries, this is often not possible or is deemed impractical, and other
viable alternatives may be reasonably legislated. For example, other accredited mental health
practitioners (such as psychiatric social workers, psychiatric nurses and psychologists) may
need to be trained and accredited, as has been done in South Africa. In most Canadian
provinces, there is only one physician in the community who authorizes a short-term (2472
hours) admission. Thereafter, an independent physician examines the person in hospital, and if
the physician does not consider a longer retention necessary the person is discharged.
There are no established rules with regard to how many practitioners must examine a person
before he/she is admitted or treated or on what their qualifications must be. Multiple
examinations by more qualified people may well provide the greatest protection to patients, but
if legislating and enforcing this means that other patients who need care are not treated because
the scarce resources are being used in assessing one person or persons are not assessed at
all because they come from a region where there are no or not enough qualified practitioners as
legislated then clearly this does not provide better protections.
Moreover, ostensibly, more qualified professionals may be less able to do mental health status
examinations than those assumed to be less qualified. For example, in many developing
countries medical doctors have had very little training and experience in mental health, whereas
certain psychiatric nurses are highly skilled and experienced. On the other hand, many
psychiatric symptoms are manifestations of an underlying physical illness, and examination by
at least one medical doctor is important. Locally appropriate solutions are clearly more important
than any rules described in this Resource Book. Nonetheless, the standards of independence,
and having two assessments, one of which is by a qualified practitioner, should always apply.
If a second assessment absolutely cannot be undertaken prior to an initial admission due to
circumstances within a country, it should occur on admission and prior to treatment being
administered. If there is a discrepancy between the first and the second assessment, a third
independent practitioner must examine the person and make recommendations, following which
a majority recommendation should be instituted.
Who should make the application?
The issue of who should make the application for involuntary admission is a further difficult and
much debated area. In some countries, based on the recommendations of a mental health
practitioner, either a family member, close relative or guardian, or another State-appointed
person (e.g. in the United Kingdom, a social worker), makes an application to the designated
mental health facility (either a mental hospital or a psychiatric ward in a general hospital) to admit
the patient to the facility. In other countries, the application for admission is made even before
the medical examination, and the examination takes place on the basis of the application.
51
In some cases, certain families believe it is their prerogative to make the decision on whether and
when a family member needs involuntary care and treatment, and that they should have a say
on whether and when outside help is needed. In yet other countries, family members are not
involved in the application at all because it is felt that most families do not wish to run the risk of
later being blamed by the family member with a mental disorder for committing them for
admission and treatment. Such differences reflect different cultures and different processes
adopted by countries, and none of the options can be considered the only correct one.
Where should the patient be admitted?
Countries will need to make decisions regarding where involuntary patients are to be admitted.
Wherever possible, like other health admissions, this should be as near to the patients homes
as possible. Facilities in general hospitals may be developed to accommodate most involuntary
patients. However, given the fact that a minority of involuntary patients may be aggressive or
difficult to handle, certain facilities may need to have the required level of security to be able to
accommodate these patients. In any event, the mental health facility should be accredited as
providing adequate and appropriate care and treatment before being permitted to admit
involuntary patients.
Who should review the proposal and continued admission?
Most countries utilize an independent authority such as a review body, tribunal or a court to
confirm involuntary admission based on medical/psychiatric/professional expertise, as outlined
above (see also section 13 below). The independent authoritys decision should not be
influenced by instructions from any source whatsoever. As with the issues mentioned above,
resources and local conditions should determine what kind of review body is needed and the
procedures to be followed. Again, countries will need to balance priorities and rights. For
example, despite the fact that most involuntary admissions are not categorized as being
emergencies (see subsection 8.4), given the criteria for involuntary admissions (above), any
delays in having a patient admitted and treated should be avoided. An appropriate balance is
needed between the right to prevent harm to self or others, on the one hand, and to be treated
(if such treatment is needed) or have the right to refuse treatment on the other.
In some countries it may not be possible to have the independent authority review each case
prior to a persons admission. Rather than delay admission, the law may provide a specified time
frame (which must be short) in which the case must be reviewed. As soon as the review body
makes its decision, the relevant action should be implemented. There should then be ongoing,
automatic, mandatory and regular reviews of status.
In practice, most involuntary admissions are brief, lasting days or a couple of weeks, with most
patients showing good recovery and/or no longer meeting the requirements for involuntary
admission. There is little reason, in most instances, to continue the involuntary admission beyond
this period. Patients may either recover sufficiently to be discharged, or be well enough to be
able to make their own decisions to voluntarily continue the placement. In some countries,
legislation does not require a review by the review body for involuntary admissions lasting less
than a specified period of time. For example, this initial time period is restricted to 72 hours under
South African legislation (Mental health Care Act, Act 17, 2002). Low-income countries with
scarce human and financial resources may see advantages to this approach, as the review
mechanism does not consume a disproportionate amount of resources to the detriment of
service provision. This particular approach is also in keeping with MI Principle 16(2) which
recommends that Involuntary admission or retention shall initially be for a short period as
specified by domestic law for observation and preliminary treatment pending review of the
admission or retention by a review body (emphasis added).
Where possible, the independent authority should give patients an opportunity to state their
views and opinions regarding involuntary admission (including whether they believe they are
52
being incorrectly admitted or where they would choose to be admitted), and these should be
taken into account when making decisions. Furthermore, the independent authority should
consult family members (and others close to the patient), the health practitioners involved and/or
a legal representative (if any) appointed by the patient.
The law can ensure that patients are informed immediately of the grounds for involuntary
admission, and that this is also conveyed promptly to the patients legal representatives and
family members as appropriate.
Moreover, an important element to be incorporated into legislative provisions on involuntary
admission is the right to appeal to quasi-judicial and judicial bodies. Legislative sections dealing
with involuntary admission should include this right and set out the process to be followed for
patients, their families and/or legal representatives for appeal to a mental health review body
and/or a court against the initial detention.
Involuntary admission: Key issues
Involuntary admission is generally permitted only if all the following criteria are met and
the patient is refusing voluntary admission:
a) there is evidence of a mental disorder of specified severity, and;
b) there is a serious likelihood of immediate or imminent harm to self or others, and/or
a deterioration in the patients condition if treatment is not given,
c) admission includes a therapeutic purpose, and;
d) this treatment can only be given by admission to a mental health facility.
Procedure to be followed for involuntary admission:
a) Two accredited mental health practitioners (one of whom ideally should be a medical
doctor) should certify that criteria for involuntary admission are fulfilled and
recommend involuntary admission.
b) An application for involuntary admission should be made in accordance with local
culture and conditions.
c) The mental health facility should be accredited as providing adequate and
appropriate care and treatment, and therefore permitted to admit involuntary
patients.
d) An independent authority (review body, tribunal or court) should authorize
involuntary admission. This should be done as soon as possible after an application is
made or, if not possible, as soon as possible after admission; legislation should lay
down the time frame required for such a review. The person should be entitled to a
legal representative at the hearing.
e) Patients, their families and legal representatives should be informed immediately of
the grounds for involuntary admission and of the patients rights.
f) Patients, their families and/or their legal representatives should have a right to
appeal to a review body and/or a court against involuntary admission.
There needs to be a provision for regular, time-bound review of involuntary admissions by
an independent review body.
Patients must be discharged from involuntary admission when they no longer fulfil the
criteria for involuntary admission. Voluntary treatment may follow.
The procedures for discharging a person from involuntary admission and treatment should be
as flexible as possible to ensure that a person is not retained for any period longer than is
necessary. Continued admission is only justified upon the persistence of the mental disorder of
a severity and form that prompted the involuntary admission. If involuntary admission is no
longer warranted, the patient may be discharged without further care, either by a doctor or a
professional as determined by law, or by the review board if it has considered the case. If
patients so choose, they may be transferred to voluntary status to continue care and treatment
53
as an inpatient or outpatient. This implies that there is a need for a statutory process for
reviewing cases at regular intervals. Where a patient is involuntarily detained for a longer period
than recommended, the right to appeal against this decision should be allowed at prescribed
intervals.
To facilitate this procedure, it is useful for countries to have standardized forms which must be
filled in at various stages (see Annex 8 for examples of such forms).
8.3.4 Criteria for involuntary treatment (where procedures for admission and treatment are
separate)
There is considerable overlap between the criteria for involuntary admission and involuntary
treatment. The main difference, however, is that, regarding treatment, the person has to be
found to lack the capacity to make informed decisions. Treatment without consent should be
considered only when all of the following conditions are met:
1. A determination that a patient has a mental disorder has been made in accordance with
international medical standards.
2. The patient lacks the capacity to give or withhold informed consent to the treatment
proposed.
3. Treatment is necessary to:
(i) bring about an improvement in the patients mental disorder; and
(ii) prevent deterioration of the patients mental state; and/or
(iii) protect the patient from self harm; and/or
(iv) protect others from significant harm.
Treatment without consent and without the authorization of a legally constituted body should be
instituted only, and strictly, in emergencies, and only for the duration of the emergency (see
subsection 8.4).
8.3.5 Procedure for involuntary treatment of admitted persons
There are a number of different ways in which a treatment process as distinct from the
admission process may be applied. The treatment decision may be independent in terms of:
a) time involuntary treatment is assessed only after the patient has been admitted;
b) criteria mental health status that requires involuntary admission is different from the
capacity to decide treatment; and
c) professional and authorizing power different people, with different skills, are involved in
deciding who needs to be involuntarily admitted and who requires involuntary treatment.
Each of these may provide added protections to the user, but, as with admission, these
processes should not be allowed to delay treatment unduly as this may also constitute a violation
of human rights.
In situations with fewer resources, it is still possible to separate the criteria for involuntary
admission and involuntary treatment, but the same person(s) should conduct the assessment
for treatment at the same time as assessing for admission.
Whether part of a combined or separate process, involuntary treatment should always be
proposed by a suitably qualified and accredited mental health practitioner. Which professional
category this is will depend on country resources and situations. As with admission, a second
independent, accredited mental health practitioner, who has independently examined the patient
and reviewed the entire medical and treatment records of the patient, may be utilized to confirm
the treatment plan. Practitioners making treatment decisions may only do this within their
professional scope of practice. It is important to emphasize once again that the designated
professionals need to have the requisite training, competence and expertise to perform this role
and legislation should stipulate these criteria.
54
Based on the above recommendations, the treatment plan as with admission
recommendations may be sanctioned by an independent authority (this may be the review
body). The independent authority may be required to verify that the patient does indeed lack the
capacity to give consent to treatment, and (under some legislations) that the proposed treatment
is in the best interests of the patient. As with admissions, this independent authority may be
quasi-judicial or judicial. The key point is that the independent authority is different from the
individual(s) proposing the treatment, and is made up of people with the requisite skills and
knowledge to judge the competence of the patient.
Although in some situations this body will be different from the body that authorizes the
admission, this may not be possible in all situations. Where only a single body is available, its
members would need to bear in mind the differing admission and treatment criteria. The
authority could then decide on a range of options, for example, that a person must be
involuntarily admitted but cannot be medically treated without his/her consent, that the patient
be both admitted and treated, or that neither involuntary admission nor treatment is permissible.
Where the same authority assesses for both admission and treatment, an opportunity is created
for recommending treatment in the community (i.e. compulsory treatment without admission)
if that is an option for the country (see subsection 8.3.7 below). Another variation on
independent sanctioning of involuntary treatment is to specify certain treatment modalities that
require a separate review process. For example, treatment using depot psychotropic
medications may require a separate procedure for sanctioning its use, but not for administering
oral medication.
When involuntary treatment is recommended, whether as part of a combined or separate
approach, it is essential that the patient be protected from any undue harm and that the
proposed treatment should aim to benefit the patient. In general, treatment should always be
applied in response to a recognized clinical symptom, have a therapeutic aim, and be likely to
entail a real clinical benefit and not only have an effect on the administrative, criminal, family or
other situation of the patient. Involuntary treatment must meet national and/or international
treatment guidelines for the particular mental health condition whichever offers the most
protection and safeguards against abuse.
Involuntary treatment must not be given for longer than is necessary, and should be
systematically reviewed by the treating health practitioner and periodically by an independent
review body. In some statutes, a maximum time limit for treatment may be stipulated. One of the
key aims of the proposed treatment must be to restore the patients capacity, and when this
occurs involuntary treatment should be stopped. In many cases, voluntary treatment will then
commence. Where a time limit is stipulated, involuntary treatment must not extend beyond the
sanctioned limit or beyond the restoration of the patients capacity whichever happens earlier.
Legislation can encourage professionals to engage patients and/or their families (or others
concerned) in the development of the proposed treatment plan, even if the treatment is being
imposed involuntarily. Patients and those caring for them must be informed immediately of their
rights when patients are being involuntarily treated.
Patients and their families and/or personal representatives must have a right to appeal to a
review body, tribunal and/or court against the imposition of involuntary treatment. Once again, it
is useful to have standardized forms for the process of appeal to a review body (see Annex 8 for
an example of such a form).
55
Example: Successful appeal of an admitted patient against involuntary treatment in
Ontario, Canada
In Ontario, Canada, Professor Starson was admitted to hospital after he was found not
criminally responsible for making death threats, and the Review Board ordered his detention
for 12 months. The attending physician proposed medical treatment for his bipolar condition.
Starson refused to consent to the treatment on the basis that medication dulled his mind and
diminished his creativity, but the attending physician found him not capable of deciding
whether to accept or reject medical treatment. Starson applied to the Consent and Capacity
Board to review the physicians decision. The Board confirmed the physicians decision.
However, the decision of the Board was subsequently overturned on judicial review by the
Superior Court. This decision was in turn referred to the Court of Appeal, which upheld the
lower courts decision. The case went to the Supreme Court of Canada, the countrys highest
court. In June 2003, the Supreme Court upheld the decision of the Ontario Court of Appeal.
In terms of the Ontario Health Care Consent Act (see Sec. 2.3) a person must be able to
understand the information that is relevant to making a treatment decision, and must be able
to appreciate the reasonably foreseeable consequences of the decision or lack of one.
The Court found that the Board had misapplied the statutory test for capacity as well as being
incorrect in its finding that Professor Starson failed to appreciate the consequences of his
decision.
This case demonstrates the important principles that:
admission without a persons consent does not necessarily imply that he/she is incapable of
making treatment decisions;
tests determining capacity are open to interpretation;
by allowing appeals to higher authorities, initial decisions on treatment can be reversed;
the integrity and inviolability of a person is a critical human rights principle.
(Starson v. Swayze, 2003, SCC 32)
When periodically reviewing involuntary treatment, the independent authority must ensure that
grounds for continuing involuntary treatment persist. Where a time for allowing involuntary
treatment has been stipulated and treatment beyond this time is required, the process of
sanctioning treatment must be repeated. The mere refusal of treatment by a patient should not
be considered as adequate grounds for resanctioning involuntary treatment.
Involuntary treatment: Key issues
The criteria for involuntary treatment must be met before treatment is administered.
Procedure to be followed for involuntary treatment:
a) The treatment plan should be proposed by an accredited mental health practitioner
having sufficient expertise and knowledge to undertake the proposed treatment.
b) A second independent accredited mental health practitioner should be required to
agree to the treatment plan.
c) An independent authority (review body) should meet as soon as possible after
involuntary treatment has been recommended to review the treatment plan. It should
meet again at set intervals to assess the need for continued involuntary treatment.
d) Where the sanction for involuntary treatment is for a limited period, continued
treatment can only be administered if the sanctioning process is repeated.
e) Involuntary treatment should be discontinued when patients are judged to have
recovered their capacity to make treatment decisions, when there is no longer a need
for treatment or when the sanctioned time has elapsed whichever happens earliest.
f) Patients and their families and/or personal representatives should be immediately
informed of involuntary treatment decisions being made and, as far as is feasible,
they should be involved in developing the treatment plan.
g) Once involuntary treatment is sanctioned, patients, families and personal
representatives must be informed of their rights to appeal to a review body, tribunal
and/or court against the involuntary treatment decision.
56
Note that the above procedure does not apply to emergency situations, special treatments or
research, which are discussed below.
8.3.6 Proxy consent for treatment
Certain jurisdictions provide for the appointment of a personal representative, a family member
or a legally appointed guardian who has the right to give consent to treatment on the patients
behalf. Clearly, proxy consent can only be considered in situations where a persons lack of
capacity to consent to treatment has been established.
Proxy consent in many circumstances is a form of involuntary treatment. Any proxy or
surrogate should be bound by a substituted judgement standard in making decisions for a
person without capacity. That is, surrogates should make the decision they believe the
incapacitated person would have made if that person had the capacity to make the decision.
Where the person never had capacity such as certain people with mental retardation the
standard merges with a best interest standard. Even then, however, surrogates should strive
to learn about the persons particular situation so that they can make the decision that is closest
to their perception of the known wants and needs of the incapacitated person.
There are advantages to proxy decisions by family members; they are the most likely to have the
patients best interests at heart and to be familiar with the patients own values. Simultaneously,
it should be acknowledged that proxy decisions particularly when they happen to be made
by family members might not be truly independent. Conflicts of interest can occur in families,
and family members may equate their best interests with the patients best interests. Safeguards
incorporated in rules governing involuntary treatment should therefore also apply to proxy
consent; e.g. patients should have the right to appeal even in circumstances of proxy consent.
In some countries legislation, provision is made for an advance directive, whereby persons
with a mental disorder may, during periods when they are well, determine what they find
acceptable or unacceptable for periods when they are unable to make informed decisions. They
may also determine who should make decisions on their behalf at times when they cannot make
informed decisions (see Annex 9 for an example of New Zealands advance directives for mental
health patients).
A recent study has shown that the negotiation of a joint crisis plan among patients and mental
health teams, including the preparation of advance directives specifying treatment preferences,
can result in reduced involuntary admissions in patients with severe mental disorders
(Henderson, 2004).
More problematic is when a person with a mental disorder specifies advance refusal of
treatment. Some mental health professionals are reluctant to accept that such an advance
refusal should apply in a later situation when a patient meets the criteria for involuntary treatment,
and where honouring the advance refusal of treatment would deprive a seriously ill patient of
needed treatment, or where patients could do harm to themselves or others.
Proxy consent to treatment: Key issues
Proxy consent may be given to a personal representative, a family member or a legally
appointed guardian who has the right to give consent to treatment on the patients behalf.
Rules governing involuntary treatment by proxy should incorporate safeguards. For
example, patients should have the right to appeal.
Advance directives give patients an opportunity to make decisions for themselves during
periods when they are able to give informed consent for periods when they are not so
capable. If a law provides for the use of advance directives or other forms of substitute
decision-making, it should define such terms clearly and consistently.
57
8.3.7 Involuntary treatment in community settings
MI Principles: Treatment in the least restrictive environment
Every patient shall have the right to be treated in the least restrictive environment and with the
least restrictive or intrusive treatment appropriate to the patients health needs and the need to
protect the physical safety of others.
(Principle 9(1), MI Principles)
Based on the principle of least restrictive alternative, some countries have enacted legislation
that permits involuntary treatment of patients residing in community settings. The community
setting is regarded as usually less restrictive than a hospital (although highly restrictive living
conditions and intrusive medical interventions that can be part of community orders are
sometimes more restrictive than, for example, a short stay in hospital).
Examples of less restrictive settings would generally include outpatient treatment, day hospital
treatment, partial hospitalization programmes and home-based treatment. There are other
reasons why some countries have made provision for involuntary treatment in the community.
First, professionals and others are concerned about the occurrence of a revolving door
situation, whereby persons with mental disorders undergo involuntary admission and treatment,
stop medication on discharge and relapse, leading to an ongoing cycle of involuntary admission
and treatment. Secondly, there is a fairly common public as well as professional perception
that deinstitutionalization has failed in many countries, and that the number of persons with
mental disorders in the community poses a public risk (Harrison, 1995; Thomas, 1995).
Some countries have community supervision orders that require individuals to reside at a
specified place and attend specified treatment programmes (such as counselling, education and
training). They also grant the individuals access to mental health professionals at their homes,
but do not include having to submit to medication without consent. Other countries have
enacted community treatment orders that include a provision for involuntary medical treatment.
New Zealand has revised its mental health legislation to accord with the least restrictive principle.
Under the Mental Health (Compulsory Assessment and Treatment) Act, Sec. 28(2), when a court
has ruled that the certification criteria (for involuntary treatment) have been met the court shall
make a community treatment order unless the court considers that the patient cannot be treated
adequately as an outpatient, in which case the court shall make an inpatient order. Such
legislative provisions aim to promote community-based treatment rather than an outmoded
institutional admissions framework. Certain other countries have introduced the concept of
conditional leave, based on the principle of the least restrictive alternative, in order to aid
community reintegration of patients who have received involuntary treatment in hospital settings.
At this juncture, the evidence base for the effectiveness of compulsory community supervision
and/or treatment orders is still rather new. Such orders appear to decrease rehospitalization and
total hospital days when they are accompanied by intensive community-based treatment, which
requires a substantial commitment of manpower and financial resources (Swartz et al., 1999).
Community supervision and treatment legislation should be introduced only in the context of
accessible, quality community-based mental health services that emphasize voluntary care and
treatment as the preferred option. There is a significant risk that compulsory community
supervision could cause mental health services to rely on compulsion for providing community-
based care, rather than focusing on making such services acceptable to users and investing
efforts and resources in engaging users in such services voluntarily.
Critics particularly those from groups representing users have argued that compulsory
supervision and treatment orders amount to institutionalization within the community, and they
are strongly opposed to such measures being taken.
58
Legislators and others considering compulsory community treatment need to ensure that this
approach does not undermine the purposes of deinstitutionalization and many of the gains made
in the humane treatment of persons with mental disorders over the past five decades.
As in cases of involuntary admission and treatment, where community orders are implemented
they must be regularly reviewed and the orders revoked when the criteria are no longer met.
Furthermore, people subject to involuntary care in the community should also have the right to
appeal their status.
Involuntary care in the community should be considered as an alternative option to involuntary
admission in a mental health facility, rather than as an alternative to voluntary community care.
The criteria for involuntary treatment described above should therefore prevail in all instances of
involuntary care and treatment.
Community-based involuntary care: Key issues
Community-based involuntary treatment (community treatment orders) and community
supervision orders can represent a generally less restrictive alternative to inpatient
involuntary treatment. The procedural requirements for community-based supervision
should be similar to those for hospital-based involuntary treatment orders (as outlined
above).
Community-based supervision and treatment legislation should be introduced only in the
context of accessible, quality community-based mental health services that emphasize
voluntary care and treatment as the preferred option.
As in cases of involuntary admission and treatment, where community orders are
implemented they must be regularly reviewed and the orders revoked when the criteria are
no longer met.
People subject to involuntary care in the community should have a right to appeal their
status.
Involuntary care in the community should be considered as an alternative option to
involuntary admission in a mental health facility, rather than as an alternative to voluntary
community care.
Person does not meet the criteria; can only be
admitted voluntarily
Patient is evaluated for involuntary admission; all criteria
are carefully evaluated
Person meets criteria for involuntary admission;
application is made for admission by family
member, personal representative or
State-appointed person
Independent review body thorougly reviews
application
Involuntary admission authorized
Involuntary admission not
granted; patient may not be
admitted/must be
discharged immediately
Patient/family member/personal representative
may appeal decision
Appeal considered by court, tribunal or other
authorized independent body
Appeal upheld Appeal denied
Involuntary admission authorized
Patient must be discharged
immediately
Involuntarily admitted patient is examined by accredited mental
health practitioner to assess incapacity to consent to treatment
Patient is assessed to be incapable of
making a decision concerning treatment
Independent authority/body reviews capacity
and determines whether involuntary treatment
can be given
Patient is assessed to be capable of making
decision concerning treatment
No involuntary treatment; patient must provide
consent to treatment before it can be given
Patient is judged capable of
making a decision concerning
treatment; no involuntary
treatment can be given
Patient is judged incapable of
making a decision concerning
treatment; involuntary
treatment can be given
Appeal process can be
initiated, as above
Assessment
may include
determining
whether the
person would
be more
effectively
treated in
hospital or in
the community
Patient to retain
the right to be
involved in
treatment plan
and to
evidence-based
options
As soon as
patient no
longer meets
involuntary
criteria, status
must return to
voluntary
Figure 1. Procedure for combined involuntary admission and treatment
(in this figure, wherever involuntary admission is mentioned, involuntary treatment is also assumed)
In case of a separate procedure for involuntary treatment
(Where admission and treatment are separate, the above procedure should be undertaken, followed by the following
procedure for involuntary treatment)
}
59
60
8.4 Emergency situations
There will be situations when urgent involuntary admission and/or urgent involuntary treatment
may be needed. Actively suicidal patients or acutely disturbed patients who are violent or
aggressive are examples. Here it may not be feasible or reasonable to expect compliance with
substantive procedures for involuntary admission and treatment. Legislation must therefore
provide for such emergency treatment with sufficient safeguards. The assistance of the police
may also be required in certain situations (see section 14 below).
Legislation should define what constitutes an emergency. In most jurisdictions, an emergency
situation is one in which there is immediate and imminent danger to the health and safety of the
person concerned and/or others. To be considered an emergency, it must first be demonstrated
that the time required to comply with substantive procedures would cause sufficient delay and
lead to harm to the concerned person or others. In such situations, legislation can permit
immediate involuntary admission to hospital and/or immediate involuntary treatment based on
an assessment carried out by a qualified medical and/or other accredited mental health
practitioner operating within their scope of practice. Emergency admission and/or treatment
should not be prolonged, but allowed only for a short period of time. During this time, if it
appears that the person may require further involuntary care, the substantive procedures for
involuntary admission or treatment should be undertaken. In many countries, emergency
admission or treatment is not permitted beyond 72 hours, as this gives sufficient time to meet
all the requirements for compliance with substantive involuntary procedures. Emergency
treatment should not include ECT, depot neuroleptics and irreversible treatments such as
psychosurgery or sterilization procedures.
8.4.1 Procedure for involuntary admission and treatment in emergency situations
The patient should be examined by a qualified practitioner to determine whether an emergency
exists. In particular, the practitioner should be able to justify involuntary admission, given the
nature of the emergency.
When the person is admitted for treatment to an accredited mental health facility, treatment
should be administered according to a treatment plan drawn up and supervised by a qualified
medical or mental health practitioner (who, ideally, should be different from the practitioner
certifying admission and/or treatment).
If the person requires involuntary admission/treatment beyond the prescribed emergency time
frame, procedures for such admission and/or treatment (see section 8.3 above) should be
initiated and completed within a specified time period. If the patient does not fit the criteria for
involuntary admission/treatment, or if the procedures for keeping/treating the person as an
involuntary patient are not completed, the person should be discharged immediately after the
emergency has ended. Admitted patients who do not fit the criteria for involuntary
admission/treatment after an emergency admission, but who may still benefit from treatment,
should be regarded as voluntary users and only treated with their informed consent.
If a person is discharged from emergency involuntary admission and not granted involuntary
admission and/or involuntary treatment, it would be inappropriate to reapply emergency powers
immediately to readmit the person unless there is a substantive change in the nature of the
emergency, requiring the use of such emergency powers. The purpose of this provision is to
prevent misuse of emergency powers to indefinitely prolong involuntary admission or involuntary
treatment.
Patients family members, and/or personal representatives should be immediately informed of
the use of emergency powers. And they should have the right to appeal to a mental health
tribunal, review body and the courts against such emergency admission and treatment.
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Emergency situations: Key issues
To be an emergency, it must first be demonstrated that the time required to follow
substantive procedures would cause considerable delay, resulting in harm to the concerned
person or others.
In an emergency, involuntary admission and treatment should be permitted on the
assessment and advice of a qualified medical or other appropriate practitioner.
Emergency treatment must be time-limited (usually no longer than 72 hours), and
substantive procedures for involuntary admission and treatment, if necessary, must be
initiated as soon as possible and completed within this period.
Emergency treatment should not include:
> depot neuroleptics
> ECT
> sterilization
> psychosurgery and other irreversible treatment.
Procedure for emergency admission and treatment:
A qualified practitioner should examine the person and certify that the nature of the emergency
requires immediate involuntary admission and treatment.
a) A treatment plan should be drawn up under the supervision of a medical or mental
health professional.
b) Procedures for involuntary admission and/or involuntary treatment should be
initiated immediately if it is assessed that the person is likely to require involuntary
care beyond the stipulated time limit for emergency treatment.
c) It is inappropriate to reapply emergency powers when a patient has been released
following completion of the procedure for involuntary admission, unless there is a
substantial change in the nature of the emergency.
d) Patients family members, personal representatives and/or a legal representative
should be immediately informed of the use of emergency powers.
e) Patients, their families and/or personal representatives have the right to appeal to a
mental health tribunal and courts against emergency admission and treatment.
9. Staff requirements for determining mental disorder
There is international consensus that clinically qualified experts must base their assessment of
mental disorder on objective evidence.
Legislation (or regulations) should
define the level of experience and skills required to determine mental disorder; and
delineate the professional groups permitted to do so.
9.1 Level of skills
There should be a system of accreditation by which practitioners who are part of the process of
determining mental disorder are independently accredited as having demonstrable competence
in this task. This accreditation should be:
codified in law;
require the accredited professional to have achieved a level of competence established by
the relevant professional organization or certifying body;
require the accredited professional to understand relevant mental health legislation.
In countries where it is not possible to achieve all of these requirements, it must be stipulated in
the law that a process be put in place to guarantee that practitioners who determine who has
mental disorders have the competence to do so.
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9.2 Professional groups
Which professional group may make a judgement about the presence or absence of a mental
disorder must be determined within countries, and must be linked to questions of availability,
accessibility, affordability, training and competence of various professional groups. In some
developed countries, only a psychiatrist (a medical doctor with special training in mental health
and mental disorder, and certified as such) is qualified to undertake this exercise, while in others,
general practitioners are considered competent. The MI Principles are silent on this issue, noting
only in accordance with internationally accepted medical standards. The European
Commission of Human Rights, on the other hand, has accepted that medical evidence may
come from a general practitioner rather than a psychiatrist (Schuurs v. the Netherlands, 1985).
In many low-income countries with a scarcity of psychiatrists and general practitioners, it may
be appropriate to designate other mental health practitioners, such as psychologists, psychiatric
social workers and psychiatric nurses, as competent to determine mental disorders. Where this
is permitted, legislation (or accompanying regulations) should clearly specify the level of
knowledge, experience and training required for such accreditation.
Staff requirements for determining mental disorders: Key issues
Legislation (or regulations) should outline the following:
> define the level of experience and skills required to determine mental disorder;
> delineate the professional groups permitted to do so.
A system of accreditation needs to exist whereby practitioners who are involved in the
process of determining mental disorder are recognized as having demonstrable competence
in this task.
Which professional group may make a judgement about the presence or absence of a mental
disorder must be determined within countries. In countries with a scarcity of psychiatrists
and general practitioners, it may be appropriate to designate other mental health
practitioners as competent to determine mental disorders. Where this is permitted,
legislation (or accompanying regulations) should clearly specify the level of knowledge,
experience and training required for such accreditation.
10. Special treatments
Countries may decide to enact legislation to protect people against abuses in the use of certain
treatments such as major medical and surgical procedures, ECT, psychosurgery or other
irreversible treatments. Some countries may also need to specifically ban certain interventions if
they are being unjustifiably utilized as treatments for mental disorders. Sterilization as a treatment
for mental illness is an example of this. In addition, the mere fact of having a mental disorder
should not be a reason for sterilization or abortion without informed consent.
MI Principles: Sterilization
Sterilization shall never be carried out as a treatment for mental illness.
(Principle 11(12), MI Principles)
63
10.1 Major medical and surgical procedures
MI Principles: Major medical or surgical procedures
A major medical or surgical procedure may be carried out on a person with mental illness only
where it is permitted by domestic law, where it is considered that it would best serve the health
needs of the patient and where the patient gives informed consent, except that, where the
patient is unable to give informed consent, the procedure shall be authorized only after
independent review.
(Principle 11(13), MI Principles)
Major medical or surgical procedures on patients with mental disorders should generally only be
performed after obtaining free and informed consent. The ethical standards governing these
treatments should apply both to non-mental-health patients and mental health patients alike. If
a patient lacks the capacity to give informed consent, legislation may permit such procedures
only under exceptional circumstances and with adequate safeguards.
Medical and surgical procedures without consent may be permitted if they are deemed to be life
saving, and if delay due to waiting for restoration of the patients capacity to consent would put
that patients life at risk. In rare cases of mental illness or profound mental retardation, where the
patients lack of capacity to consent is likely to be permanent, medical and surgical interventions
may also be necessary without consent. In these situations, the proposed medical or surgical
treatment may be authorized either by an independent review body or, in countries where the
law permits, a proxy consent by a guardian, relative or personal representative. In other
instances, medical and surgical treatment must be delayed until the patients mental state
improves to a point where he/she has the capacity to make a treatment decision.
Where emergency medical and surgical treatment is necessary to save a patients life or prevent
irreparable deterioration in his/her physical health, a person with a mental disorder should be
entitled to the same treatment available to other persons without mental disorders who are not
able to consent (e.g. unconscious patients). Legislation governing emergency medical and
surgical treatment given without consent to all persons should thus also cover persons with
mental disorders. Medical services carry the responsibility of providing and justifying the
appropriateness of such emergency medical and surgical treatment.
10.2 Psychosurgery and other irreversible treatments
MI Principles: Psychosurgery and other intrusive and irreversible treatments
Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be
carried out on a patient who is an involuntary patient in a mental health facility and, to the
extent that domestic law permits them to be carried out, they may be carried out on any other
patient only where the patient has given informed consent and an independent external body
has satisfied itself that there is genuine informed consent and that the treatment best serves the
health needs of the patient.
(Principle 11(14), MI Principles)
Psychosurgery and other irreversible mental health treatments generally should not be permitted
to be performed on people unable to give informed consent. In view of the irreversible nature of
certain treatments, legislation may provide an additional level of protection to consenting
patients by making it mandatory that an independent review body, or similar safeguard, sanction
the treatment. The review body (or other safeguarding structure) should interview the patient,
ensure that the patient has the capacity to give, and has in fact given, informed consent, and
review the patients medical/psychiatric history and records. The review body/safeguard must be
64
satisfied that the proposed intrusive treatment is in the best interest of the patient. Patients
should also be made aware of all risks as well as short- and long-term effects of the proposed
treatment.
10.3 Electroconvulsive therapy (ECT)
Although significant controversy surrounds electroconvulsive therapy (ECT) and some people
believe it should be abolished, it has been and continues to be used in many countries for certain
mental disorders. If ECT is used, it should only be administered after obtaining informed consent.
And it should only be administered in modified form, i.e. with the use of anaesthesia and muscle
relaxants. The practice of using unmodified ECT should be stopped.
There are no indications for the use of ECT on minors, and hence this should be prohibited
through legislation.
Special treatments: Key issues
Sterilization is not a treatment for mental disorder, and having a mental disorder should
not be a reason for sterilization (or abortion) without informed consent.
Ethical standards that govern major medical and surgical procedures that are applicable to
all patients should also be applied to persons with mental disorders.
Major medical and surgical procedures should be performed only with informed consent,
except under exceptional circumstances. In these circumstances, proposed medical or
surgical treatment should either be authorized as involuntary treatment by an independent
review body or by proxy consent.
Emergency medical and surgical treatments for people with mental disorders should be
treated in the same manner for all patients who need such emergency treatment without
consent.
Psychosurgery and other irreversible treatments should not be permitted as involuntary
treatment, and, as additional protection, all such treatment should be reviewed and
sanctioned by an independent review body.
ECT should be administered only after obtaining informed consent. Modified ECT should
be utilized. Legislation should prohibit the use of ECT on minors.
11. Seclusion and restraint
The terms seclusion and restraint may need to be defined in legislation, as there can be
various interpretations of what is meant by these terms. Moreover, there may be different types
of seclusion and restraints that may apply in different circumstances.
Legislation should discourage the use of restraints and seclusion in mental health facilities. To
facilitate this, countries will need to develop their mental health infrastructure, as it is often a lack
of resources that encourages staff to use these interventions. To protect against abuse,
legislation may outline the exceptional circumstances when these procedures are permitted.
Restraints and seclusion may be allowed when they are the only means available to prevent
immediate or imminent harm to self or others, and then used for the shortest period of time
necessary. They may only be authorized by an accredited mental health practitioner. If used,
there needs to be ongoing active and personal contact with the person subject to seclusion or
restraint, which goes beyond passive monitoring. Legislation may ensure that restraints and
seclusion are used as procedures of last resort when all other methods of preventing harm to
self or others have failed. In particular, legislation must ban the use of restraints and seclusion as
a form of punishment.
65
MI Principles: Seclusion and restraint
Physical restraint or involuntary seclusion of a patient shall not be employed except in
accordance with the officially approved procedures of the mental health facility and only when
it is the only means available to prevent immediate or imminent harm to the patient or others.
It shall not be prolonged beyond the period which is strictly necessary for this purpose. All
instances of physical restraint or involuntary seclusion, the reasons for them and their nature
and extent shall be recorded in the patient's medical record. A patient who is restrained or
secluded shall be kept under humane conditions and be under the care and close and regular
supervision of qualified members of the staff. A personal representative, if any and if relevant,
shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.
(Principle 11(11), MI Principles)
All episodes of physical restraint and seclusion should be recorded in a register that is made
available to the review body for its perusal and for identification of facilities that may be abusing
these interventions. Information should include details of the circumstances leading to restraint
and seclusion, the duration, and the treatment given to bring about a speedy termination of the
restraint or seclusion.
Where possible, there should be a legislative requirement to immediately inform patients families
and/or personal representatives when patients are subjected to seclusion or restraint
procedures.
Seclusion and restraint: Key issues
Seclusion and restraint may be permitted by legislation when they are the only means
available to prevent immediate or imminent harm and danger to self and others.
Seclusion and restraints must be used for the shortest period of time (lasting minutes or a
few hours).
One period of seclusion and restraint should not be followed immediately by another.
There needs to be ongoing active and personal contact with the person subject to seclusion
and restraint, which goes beyond passive monitoring.
Legislation should ban the use of seclusion and restraints as punishment or for the
convenience of staff.
Legislation should also promote infrastructure and resource development so that seclusion
and restraints are not used due to such deficiencies.
Procedure for exceptional use of seclusion and restraints:
a) They should be authorized by an accredited mental health practitioner;
b) The mental health facility should be accredited as having adequate facilities for
undertaking such procedures safely;
c) The reasons and duration of seclusion and restraint and the treatment given to
ensure speedy termination of these procedures, should be entered in the patients
clinical records by the mental health professional authorizing these procedures.
Records of all seclusion and restraint should be recorded in a register, which is
accessible to a review body.
Patients family members and/or their personal representatives may need to be
immediately informed when patients are subjected to seclusion or restraint.
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12. Clinical and experimental research
ICCPR: Clinical and experimental research
No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subject without his free consent to medical or scientific
experimentation.
(Article 7, International Covenant on Civil and Political Rights (ICCPR))
Article 7 of the ICCPR (1966) prohibits clinical and experimental research without informed
consent. This Article is an important part of the ICCPR and has been designated as one of the
provisions that is non-derogable; it can never be limited even under conditions of national
emergency. The UN Human Rights Committee has made it clear that Article 7 (of the ICCPR)
allows no limitation no justification or extenuating circumstances may be invoked to excuse
a violation of Article 7 for any reasons. Article 7 therefore prohibits research on subjects who
lack the capacity to consent.
On the other hand, MI Principle 11 states that, clinical trials and experimental research shall
never be carried out on any patient without informed consent, except that a patient who is
unable to give informed consent may be admitted to a clinical trial or given experimental
treatment, but only with the approval of a competent, independent review body specifically
constituted for this purpose.
The International Ethical Guidelines for Biomedical Research Involving Human Subjects,
prepared by the Council for International Organizations of Medical Sciences (CIOMS, 2002),
allows biomedical research with proxy consent, or consent from a properly authorized
representative, involving individuals who are incapable of giving informed consent. Where
informed consent cannot be obtained, an ethics review committee should approve the
permission (Guideline 4). Guideline 15 of the CIOMS guidelines (2002) specifically outlines criteria
to be fulfilled when conducting research involving persons with mental disorders (see box
below).
CIOMS Guidelines: Research
Research involving individuals who by reason of mental or behavioural disorders are not
capable of giving adequately informed consent
Before undertaking research involving individuals who by reason of mental or behavioural
disorders are not capable of giving adequately informed consent, the investigator must ensure
that:
such persons will not be subjects of research that might equally well be carried out on
persons whose capacity to give adequately informed consent is not impaired;
the purpose of the research is to obtain knowledge relevant to the particular health needs of
persons with mental or behavioural disorders;
the consent of each subject has been obtained to the extent of that persons capabilities, and
a prospective subjects refusal to participate in research is always respected, unless, in
exceptional circumstances, there is no reasonable medical alternative and local law permits
overriding the objection; and
in cases where prospective subjects lack capacity to consent, permission is obtained from a
responsible family member or a legally authorized representative in accordance with
applicable law.
(Guideline 15, Research involving persons with mental and behavioural disorders,
International Ethical Guidelines for Biomedical Research Involving Human Subjects, 2002)
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The MI Principles and CIOMS Guidelines thus allow research involving persons who are lacking
capacity to consent if: i) the research is necessary to promote the health of the population
represented; ii) this research cannot instead be performed on persons who have the capacity to
consent; and iii) adequate procedural safeguards are followed.
It has been argued that although the ICCPR is legally binding on the governments that have
ratified it, whereas the CIOMS Guidelines and the MI Principles are not, in certain circumstances
it could be advantageous for people affected by particular conditions to allow research or
experimentation without consent, where this involves minimal risk of harm to the person; for
example, people with conditions (whether current or likely to present in the future) where all
affected are unable, due to their condition, to give informed consent. In such circumstances, the
consequence of not undertaking research with this group may be a reduced likelihood of ever
finding treatments or interventions that could cure or prevent the condition.
If countries do decide to legislate in favour of research or experimentation involving persons
unable to give informed consent, the CIOMS guidelines should be carefully followed.
Clinical & experimental research: Key issues
Informed consent for participation in clinical or experimental research must be obtained
from all patients who have the capacity to consent. This is applicable to both voluntary and
involuntary patients.
In countries where clinical and experimental research is permitted with patients who are unable
to consent, legislation should include the following safeguards:
1. When patients are lacking capacity to give informed consent, they may participate in
clinical and experimental research, provided that proxy consent is obtained from legally
appointed guardians and/or family members and/or personal representatives, or by
obtaining consent from an independent review body specifically constituted for this
purpose.
2. Participation of patients who are lacking capacity to consent, by obtaining consent from
proxies or an independent review body, should only be considered when:
a) this research cannot be performed on patients who are capable of giving consent;
b) the research is necessary to promote the health of the individual patient and the
population represented;
c) adequate procedural safeguards are followed.
13. Oversight and review mechanisms
Most modern mental health legislation contains statutory safeguards providing for the creation
of review bodies to protect the human rights of persons with mental disorders. Such bodies fall
into two broad categories: (i) oversight and review of the processes regarding people who are
admitted/treated involuntarily; and (ii) oversight and review of the well-being of people with
mental disorders, within and outside mental health facilities. The former is a judicial or quasi-
judicial function. The latter, although it may be provided in law, and penalties for not carrying out
its instructions enforced in some instances, does not operate as a court that can impose
restrictions on the liberty of individuals or decide that involuntary patients should be discharged,
for example. In many countries these two bodies are completely independent of each other, have
members with different expertise and have unique powers and functions; however, in other
countries one body may be legislated to carry out the full range of functions.
Whether one or two bodies are set up, independence is crucial. All review bodies should make
decisions purely on the merits of the situation before them, and should not be influenced by
political or departmental pressures or by health service providers.
Legislation should make provision for the composition, powers and resources of these
authoritative bodies. It is also necessary to decide whether to have a body with national
jurisdiction or to have a number of review bodies functioning at local, district or regional levels
based on existing administrative boundaries.
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13.1 Judicial or quasi-judicial oversight of involuntary admission/treatment and other
restrictions of rights
Most countries employ an independent authority such as a review body, tribunal or court to
sanction involuntary admission and treatment based on medical/psychiatric/professional
expertise. This is an important function since, although the examining accredited health
professional decides whether a person meets the criteria for involuntary admission/treatment, it
is generally the prerogative of a judicial or quasi-judicial authority to rule on whether persons can
be admitted/treated against their will. In many jurisdictions, courts are the preferred option to
carry out this function due to their easy accessibility and unambiguous legal status. However,
the position of the courts in a number of countries has been questioned, as some have merely
become a rubber stamp for the medical decision. Judges or magistrates often make their
decisions in the absence of the patient, their representative or witnesses, and confirm the
medical recommendation without applying independent thought and analysis to the process.
An alternative to a court procedure is the establishment of an independent and impartial court-
like body with a judicial function. Such a body is established by law to determine matters within
its competence and to make binding decisions on such matters. The fact that it is specifically
established for this purpose, and is comprised of specially selected members with expertise, is
believed, in certain countries, to make this a more competent body for the purpose than a court.
The exact functions of this judicial or quasi-judicial body with regard to involuntary admission and
treatment are likely to vary from country to country and may, in some jurisdictions, complement
rather than replace the role of the court. The following, however, are important roles for such a
body:
Assess each involuntary admission/treatment Many legislative frameworks are categorical that
every case of a person recommended for involuntary admission/treatment should appear before
the review body. The persons concerned should be represented by a legal counsel and should
be allowed the opportunity to state their position. They, as well as the authorities seeking
involuntary admission/treatment, should call witnesses as required. The review body has the
power to endorse or override, after careful consideration, any involuntary committal/treatment.
It has been argued that in countries with fewer resources it may not be possible for a review
body to consider each case in person, and that a paper review may be conducted for some
of the more straightforward cases. However, the review body would conduct hearings on all the
more contentious cases, or where there is a particular reason for holding a full hearing.
Entertain appeals against involuntary admission and/or involuntary treatment from patients,
families and/or personal representatives. As a basic human right, even in countries with fewer
resources, all patients must be informed of their right to appeal, and all appeals must be heard
within reasonable time frames (see Annex 8 for an example of an appeal form). The review body
must have the right to overturn involuntary admission and treatment decisions that have come
to it on appeal.
Review the cases of patients admitted on an involuntary basis (and long-term voluntary patients)
at periodic intervals to ensure that patients are not held in hospital for longer than is necessary
for their protection and treatment. Review bodies may also be given the power to discharge a
patient if they deem the patient to be wrongly held.
Regularly monitor patients receiving treatments against their will. Except in emergency situations,
the review body should implement a procedure for authorizing or disallowing continued
treatment of involuntary patients without their consent. The review body should also monitor
involuntary treatment given in the community (for example, community supervision and
treatment orders).
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Authorize or prohibit intrusive and irreversible treatments such as all cases of psychosurgery and
electroconvulsive therapy (ECT). Even though these treatments should be undertaken on a
voluntary basis, a review body can, nevertheless, protect patients from unnecessary treatments,
by sanctioning or prohibiting them after due consideration of the merits.
Where jurisdictions include non-protesting patients, the review body would also be required to
carry out most of the above functions with this group of patients.
Appeals against the decisions of a review body should be allowed to go directly to the courts.
13.1.1 Composition
Countries will determine the composition and number of representatives of the quasi-judicial
body based on the functions assigned to it and the availability of human and financial resources.
Nonetheless, given the legal and health considerations that a quasi-judicial body has to deal
with, it is probably advisable that, at the least, an experienced legal and an experienced health
professional be appointed. In addition, at least one non-professional person may need to be
represented to reflect a community perspective. In view of the gravity of the decisions that the
body will be making, respected individuals with wisdom would also seem appropriate.
Example: Review body composition
In New South Wales (Australia) the members of the Mental Health Review Tribunal are to be
appointed from:
a) barristers and solicitors;
b) psychiatrists;
c) persons having, in the opinion of the Governor, other suitable qualifications or
experience, including at least one person selected from a group of persons who are
nominated by consumer organizations.
(New South Wales Mental Health Act 1990)
13.2 Regulation and oversight body
A number of oversight and regulatory tasks are required to promote the human rights of people
with mental disorder. These might include the following:
Conduct regular inspections of mental health facilities The independent body may undertake
regular inspections of all mental health facilities at periodic intervals, and conduct additional
visits, as deemed necessary, without any prior notice (sometimes called a visiting board). During
such visits, it should have unrestricted access to all parts of the health facility and patients
medical records as well as the right to interview any patient in the facility in private. During such
visits, representatives need to inspect the quality of living facilities as well as the documentation
in medical records, and also personally interview voluntary as well as involuntary patients
admitted to the facility. Such visits provide the review body and its representatives with the
necessary means to satisfy requirements that persons within the facility are receiving the
treatment and care they need, that their human rights are not being violated, and that the mental
health facilities are implementing the safeguards contained in mental health legislation.
Legislation should lay down the procedures to be followed and the penalties if violations are
found.
Periodically receive and review copies of unusual incident reports and death records from mental
health facilities to permit review of institutional practices.
Guidance on minimizing intrusive treatments, such as seclusion and restraint The review body
should establish guidelines for authorizing such procedures and ensure that the guidelines are
being followed. This protection must be available to both involuntary and voluntary patients.
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Maintain statistics on, for example, the percentage of patients admitted and treated involuntarily,
the duration of involuntary admission and involuntary treatments, use of intrusive and irreversible
treatments, seclusion and restraints, physical comorbidities (especially epidemics that could be
indicative of poor hygienic or nutritional conditions in the institution), suicide, and natural or
accidental deaths.
Maintain registers of facilities and professionals accredited for admission and treatment of those
with mental disorders, and outline and enforce minimum necessary standards for such
accreditation.
Report directly to the appropriate government minister(s) with responsibility for mental health
legislation.
Make recommendations to the minister(s) with regard to improvements required, either through
amendments to the legislation or to the code of practice.
Publish the findings on a regular basis as specified by the legislation.
13.2.1 Composition
To provide effective protection, a minimum composition may include professionals (e.g. in mental
health, legal and social work), representatives of users of mental health facilities, members
representing families of people with mental disorders, advocates, and lay persons. In some
countries it may be appropriate for religious authorities also to be given representation. Women
and minority groups should receive adequate representation. The number of persons serving on
the oversight and regulations body, and the breadth of representation, will largely depend on the
resources available. In a combined approach, adequate representation from both the quasi-
judicial and regulation and oversight bodies would need to be accommodated.
13.2.2 Additional powers
The mental health review body/bodies should have statutory powers to enforce compliance with
the provisions of mental health legislation. In addition to those described above these powers
may include:
granting accreditation to professionals and mental health facilities (although professional
accreditation may alternatively lie with statutory professional councils);
the power to withdraw accreditation from facilities and professionals for non-compliance with
legislation;
the power to impose administrative and financial penalties for violations of legislative norms;
and
the power to close facilities which persistently violate human rights of persons with mental
disorders.
13.3 Complaints and remedies
Patients as well as their family members and personal representatives should have the right to
complain about any aspect of care and treatment provided by mental health services.
To ensure the protection of users rights, while at the same time being fair to service providers,
a complaints procedure should be based on a set of guiding principles. These may differ from
one situation to the next, but some of the most important values are:
consultation with increased openness and transparency
quality enhancement
impartiality
accessibility
speed and responsiveness
courtesy
accountability
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confidentiality
independent advocacy
humane care and treatment
transparent process.
Legislation should outline the procedure for submission, investigation and resolution of
complaints. An effective complaints procedure should be written in simple language and be
prominently displayed so that mental health care users or their families are informed of its
relevance, applicability, and how and where to lodge a complaint. The procedure should define
the time from the occurrence of the incident within which a complaint can be made, and specify
a maximum period within which the complaint must be responded to, by whom and how. In the
event of a user not being satisfied with the outcome of a grievance, the complaints procedure
should also specify the next or higher level to which the matter can be referred. An initial
complaint, ideally, should first be made to the health facility, and if unresolved, to the oversight
body.
It may be appropriate to appoint an ombudsperson with the authority to receive and investigate
complaints against mental health services. If appointed, that person should forward a report of
its investigations, along with recommendations, to the oversight body for appropriate action, and
penalties if necessary. The review body should set in place a procedure to prevent retribution
against patients filing complaints.
13.4 Procedural safeguards
Patients should have the right to choose and appoint a personal representative and/or a legal
counsel to represent them in any appeals or complaints procedure. Patients should also have
access to the services of an interpreter if necessary. The State should pay for the services of
such counsel and/or interpreter for patients who do not have the financial means to pay for such
services.
Patients (and their counsel) should have the right to access copies of their medical records and
any other relevant reports and documents during the complaints or appeals procedure. They
should also have the right to request and produce an independent mental health report and any
other relevant reports, as well as oral, written or other evidence during the complaints or appeals
procedure. In addition, patients and their counsel should have the right to request that a
particular person be present at a complaints or appeals procedure, if that presence is deemed
relevant and necessary.
Patients and their counsel should have the right to attend and participate in all complaints and
appeals hearings. The decisions arising out of the hearings should be expressed in writing and
copies given to patients and their counsel. When publicizing the decisions of the complaints or
appeals hearings, due consideration should be given to respecting the privacy of the patient and
other persons, and to the need for preventing serious harm to the patients health or putting the
safety of others at risk. Additionally, patients and their counsel should have the right to judicial
review of such decisions.
Review bodies: Key issues
An independent review body (or bodies) should be set up to protect the human rights of
persons with mental disorders. Countries may have separate bodies dealing with quasi-judicial
and other regulatory and oversight issues, or a combined structure.
The functions of the quasi-judicial body with respect to involuntary admission/treatment or
other patients admitted or receiving treatment without consent should include assessing
each involuntary admission/treatment, entertaining appeals, reviewing the cases of patients
admitted on an involuntary basis at periodic intervals, regularly monitoring patients
receiving treatments against their will, and authorizing or prohibiting intrusive and
irreversible treatments.
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Functions of a regulatory and oversight body may include conducting regular inspection of
mental health facilities; regular monitoring of patients' welfare and well-being; providing
guidance on minimizing intrusive treatments; keeping records and statistics; maintaining
registers of accredited facilities and professionals; publishing reports; and making
recommendations directly to the relevant minister regarding their findings.
The composition of review bodies will depend on the functions assigned and on whether
two separate bodies or a single body is chosen. A quasi-judicial body may consist of at
least one legal and one health practitioner as well as an appropriate community
representative. A regulatory and sanctioning body may include professionals (mental
health, legal, social work), representatives of users of mental health facilities, members
representing families of people with mental disorders, advocates and lay persons.
The mental health review body should have statutory powers to enforce compliance with
the provisions of mental health legislation.
Appeals against the decisions of a review body should be allowed to be made directly to
the courts.
Patients as well as their family members, personal representatives and advocates should
have the right to complain to the review body about any aspect of care and treatment
provided by mental health services.
Legislation should outline the procedure for submission, investigation and resolution of
complaints.
Patients should have the right to choose and appoint a personal representative and/or a
legal counsel to represent them in any appeals or complaints procedure. They should also
have the right to access copies of their records and to attend and participate in hearings.
14. Police responsibilities with respect to persons with mental disorders
Legislation can assist in ensuring a constructive and helpful role for the police with respect to
people with mental disorders.
14.1 Powers of the police
The police have a primary responsibility for maintaining public order. At the same time, they also
have a duty to protect and respect the rights of persons who are vulnerable on account of a
mental disorder, and to act in a caring and compassionate manner. Legislation often requires the
police to intervene in situations where the behaviour of persons with mental disorders represents
a danger to themselves or to the public. Examples of such situations include the following:
Entering private premises, arresting a person and taking that person to a place of safety
when there are reasonable grounds to suspect that person represents a danger to self or
others. In this case, the police should obtain a warrant prior to entering the premises. In an
emergency, where the health and safety of the individual and/or those around him/her are at
risk unless immediate action is taken, provision may be made in legislation for the police to
act without a warrant.
Taking a person subject to involuntary admission to a designated mental health facility. For
example, this would apply to a person who needs to be taken to a mental health facility
following an assessment by a mental health professional in a hospital emergency room that
he/she requires involuntary admission. Another example is a person on conditional release
who fails to observe the conditions of the release and thus may need to be taken back to a
mental health facility.
Taking an involuntary patient absent without leave from a mental health facility, back to that
facility.
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14.2 Responding to calls for assistance
In emergency situations, family members or carers sometimes witness and/or are caught in
highly aggressive or out-of-control behaviour. Legislation should allow them the possibility to
alert the police to the situation so that the police can intervene if necessary. In such a situation,
the police should have discretion to decide whether or not there is immediate and imminent
danger, and whether the person may be acting in this manner due to a mental disorder. In this
situation, police or emergency personnel must also have quick access to a mental health
professional service for advice.
Health professionals or others working in health facilities may also require the assistance of the
police in certain circumstances. In these situations, the police would not have discretion to
evaluate whether or not the person has a mental disorder.
14.3 Protections for persons with mental disorders
Legislation may place restrictions on the activities of the police to ensure protection against
unlawful arrest and detention of persons with mental disorders. These include the following:
14.3.1 Place of safety
If a person is picked up by the police for causing public disorder that is suspected to be related
to that persons mental health, police powers may be restricted to taking the person to a place
of safety for an assessment of that persons condition by a qualified mental health practitioner.
However, if the person is a known psychiatric patient, and does not appear to need treatment
and care, the police may simply return the person to his or her home.
A place of safety could include a designated mental health facility, a private place (e.g. a
psychiatrists office) or other secure location. The police do not have the legal authority to detain
the person in a prison facility (or in police custody) under these circumstances. However, where
it is impossible to immediately take the person to a place of safety, such as may occur in some
developing countries, the legislation should determine a short time frame in which the police may
retain custody of a person suspected of having a mental disorder. Once the police have taken
the person to a place of safety for assessment, the person is no longer considered to be in police
custody and cannot be subsequently detained. Problems may occur with police powers of this
type if the place of safety cannot (or will not) take the person in for assessment (e.g. because
the place of safety does not have appropriate personnel available to conduct the assessment or
does not have room for the person). Clearly, such situations indicate the need for the health
sector to provide sufficient resources for mental health services. (see Chapter 2 subsection 4.1)
If a person has been arrested for a criminal act, and the police have a reasonable suspicion that
the person suffers from a mental disorder, such a person should be taken to a place of safety
for assessment by a mental health professional. In situations where a person represents a
danger to himself/herself or to others, he/she should be taken to a secure mental health facility
for assessment. Following assessment, if no mental disorder is detected, the police would have
the power to take the person back into detention or custody, if appropriate.
14.3.2 Treatment options
Following the mental health assessment, if the person is deemed to require treatment he/she
should be offered the opportunity to enter a programme (as an inpatient or outpatient, as
appropriate). The full implications of his/her condition and the advantages and disadvantages of
different treatment options should be explained to the patient. If the person refuses
admission/treatment, he/she must be discharged unless the criteria for involuntary
admission/treatment (described above) are met in which case the relevant processes should
be followed. Whether a person has been brought in by the police, a family member or anyone
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else, the due procedures for involuntary admission and treatment should be observed (see
subsection 8.3 above).
14.3.3 Detention period
The period of holding a person for an assessment should not be excessive. Legislation can
mandate procedures requiring an assessment within a specified time period (e.g. 2472 hours).
If the assessment has not occurred by the end this period, the person should be released.
14.3.4 Prompt notification
The police should promptly inform persons who are detained in their custody prior to being sent
for an assessment as to why they are being detained and what will be happening to them. Under
certain circumstances, a family member or other designated representative may also be notified
of such a detention, with consent from the detainee.
14.3.5 Review of records
Records of all incidents in which a person has been held on suspicion of mental disorder may
be passed on to a review body or independent monitoring authority (see section 13 above).
Police responsibilities and duties: Key issues
There are several situations when the police will have cause to interact with people with mental
disorders and mental health services. In each case, the police are duty-bound to respect and protect
the rights of people with mental disorders, and to act in a caring and compassionate manner.
a) In public places If the police have reasonable grounds to suspect mental disorder in a
person arrested for causing public disorder, the law may require the police to take the person
to a place of safety for assessment by a mental health professional. Assessment must be
completed expeditiously (e.g. within 2472 hours of the initial detention).
b) In private premises Police should obtain a warrant issued by a court for entry into private
premises and detention of any person suffering from a severe mental disorder who is likely to
cause significant harm to self or others. A family member or an independent authority such
as a social worker may request a warrant from the court. Persons detained in this way should
immediately be taken to a place of safety for assessment by a mental health professional.
Assessment must be completed expeditiously (e.g. within 2472 hours of the initial detention).
The police may need to bypass the warrant requirement under very urgent circumstances,
where there is imminent danger and immediate police action is necessary.
c) Persons arrested for criminal acts and in police custody If the police have reasonable
grounds to suspect a person who has been arrested for criminal acts of having a mental
disorder, legislation may require the police to take such a person to a place of safety for
assessment by a mental health professional. In that case, the police would continue to have
the power to detain such a person after his/her removal to a place of safety.
d) Persons admitted involuntarily to a mental health facility The police have a duty to take to
a designated mental health facility any person who has been involuntarily admitted to a
mental health facility by due process of law. This would apply, for example, to a person found
to require involuntary admission after assessment by a mental health professional in a
hospital emergency room, or a person requiring involuntary admission to a mental health
facility due to failure to comply with conditional release requirements.
e) Persons admitted involuntarily who are absent without leave from a mental health facility
The police have a duty to find and return such persons to the mental health facility from
where they have been absent without leave.
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15. Legislative provisions relating to mentally ill offenders
Legislative provisions relating to mentally ill offenders are a highly complex area covering both
the criminal justice and forensic mental health systems. There are wide variations in policy and
practice in different countries, and forensic mental health is often part of the criminal code (or
criminal procedure) rather than of mental health law.
The criminal justice system is charged with protecting the public, punishing criminals, and
administering the laws in a fair and just manner. Police, prosecutors and the courts should
conduct themselves in a way that protects the rights, not only of the victims of crime but also of
particularly vulnerable populations, including persons with mental disorders. One important goal
of the criminal justice system should be to ensure that no one with a mental disorder is
inappropriately held in police custody or in a prison. At present, this goal is not often achieved.
Far too many people with mental disorders are prosecuted and imprisoned, often for relatively
minor offences. There is increasing worldwide concern about people with mental disorders being
incarcerated in prisons, rather than being cared for in mental health facilities. In some countries,
there are as many individuals with schizophrenia in prison as there are in all the hospitals (Torrey,
1995).
The large numbers of persons with mental disorders incarcerated in prisons is a by-product of,
among other things, unavailability or reduced availability of public mental health facilities,
implementation of laws criminalizing nuisance behaviour, the widespread misconception that all
people with mental disorders are dangerous, and an intolerance in society of difficult or
disturbing behaviour. Furthermore, some countries lack legal traditions that promote treatment
(as opposed to punishment) for offenders with a mental disorder.
Prisons are the wrong place for people in need of mental health treatment, since the criminal
justice system emphasizes deterrence and punishment rather than treatment and care. Where
correctional facilities do emphasize rehabilitation, they are usually inappropriately equipped to
assist people with mental disorders. Unfortunately, prisons have become de facto mental
hospitals in a number of countries. Prisoners with severe mental disorders are often victimized,
intentionally or unintentionally.
Mental health legislation can help to prevent and reverse this trend by diverting people with
mental disorders from the criminal justice system to the mental health care system. Legislation
should allow for such a diversion at all stages of the criminal proceedings from the time a
person is first arrested and detained by the police, throughout the course of the criminal
investigations and proceedings, and even after the person has begun serving a sentence for a
criminal offence.
Legislation can play an important role at various stages of the criminal proceedings. As
mentioned earlier (section 14 above), where minor crimes such as public disturbance are
committed by people suspected of having a mental disorder, it is preferable for the police to
immediately take such persons to treatment centres rather than have them subject to criminal
proceedings.
Laws governing mentally ill offenders often part of criminal procedure rather than mental health
legislation vary considerably among countries. The following section should thus be read in
close conjunction with existing legal processes in a country, and be adapted and adopted
accordingly. What never varies, however, is the principle that people with mental disorders
should be in appropriate facilities where suitable treatment is available.
The following are the different stages at which an arrested person can be diverted towards
mental health admission and treatment as found in different legislative statutes.
Pre-trial stage
Trial stage
Post-trial (sentencing) stage
Post-sentencing (serving sentence in prison) stage
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As mentioned, not all of these stages exist in all countries and variations do occur. Countries
should adopt whatever is most appropriate for their circumstances.
15.1 The pre-trial stages in the criminal justice system
15.1.1 The decision to prosecute
In most countries, the police and/or prosecutors decide whether to prosecute a person for a
particular offence. Legislation or administrative regulations can specify criteria for making
decisions about whether or in what circumstances a person with a mental disorder will be
prosecuted or diverted to the mental health system. These criteria should create a presumption
against prosecution and in favour of treatment. The following factors should be taken into
account:
the gravity of the offence;
if the person has previously been under psychiatric treatment, and for how long; for
example, if a person has a treatable mental disorder, prosecutors may decide that
continued treatment is preferable to prosecution;
the persons mental state at the time of the offence;
the persons current mental state;
the likelihood of harm to the persons mental health as a result of prosecution;
the interest of the community in pursuing a prosecution (i.e. the risk posed by the person
to the community).
By foregoing prosecution in favour of voluntary treatment for persons with mental disorders who
do not pose a serious public safety risk, the police and prosecutors can benefit the individual
and society. Persons with mental disorders would not be subjected to unnecessary stigma, and
they could begin necessary treatment immediately instead of being trapped in the criminal justice
system.
15.2 The trial stage in the criminal justice system
Once a decision has been made to proceed with criminal charges, there are two processes
applicable to a person with a mental disorder. The first is if the person is unfit to stand trial and
the second is if the person cannot be held criminally responsible for his/her actions at the time
of committing the offence. In some cases there can be an overlap, in that the person who
suffered from a mental disorder at the time of the offence remains so to the time of trial.
15.2.1 Fitness to stand trial
The law in most countries requires that a person be physically and mentally fit to stand trial.
Generally, mental fitness is measured according to whether the person is able to (i) understand
the nature and object of the legal proceedings; (ii) understand the possible consequences of the
proceedings; and (iii) communicate effectively with legal counsel.
If a decision is made to prosecute a person, and there are reasonable grounds to suspect that
the accused may suffer from a mental disorder, the court must request a mental health
assessment by a qualified mental health professional, usually, but not always, a psychiatrist. Often
this takes place before the trial starts, but it can take place at any point during the trial. Preferably,
the assessment should take place at a designated mental health facility or other place of safety
pursuant to a court order. The maximum length of time in which a psychiatric observation should
take place should be specified, in order to ensure that the person is not detained unnecessarily
and that the trial is not unreasonably delayed. A number of countries specify a limit of 30 days. If
a person is subsequently found unfit to stand trial by virtue of a severe mental disorder, criminal
proceedings may not commence until the person regains fitness. In such cases, the law should
empower the court to transfer the person to a mental health facility for treatment. Moreover, such
a person should have the right to appeal against any continued confinement.
1
The term NRDMD is analogous to other terms such as not guilty by reason of insanity (NGRI) used in some countries, and
to a lesser extent guilty but insane. NRDMD is a less stigmatizing term for the concept that persons do not have criminal
responsibility for their actions because of the contributory role played by their mental distability. Some commentators believe that
the guilty but insane verdict is punitive and unfair to persons with serious mental illness. It is also conceptually problematic
because if the requisite criminal intent is not established, the person cannot logically de found guilty.
2
This definition should be broader than the insanity test under the McNaughten Rules. Many countries still employ the
McNaughten Rules, which allow for defence on the grounds of a mental disorder only if the accused did not know what (s)he
was doing when (s)he commited the offence, or if (s)he was aware of the act, but did not know that the act was wrong. However,
many severely mentally ill people are able to comprehend that what they are doing is wrong, but their cognition is highly distorded
due to a serious mental disorder. Therefore some have argued that even the most severely metally ill people are considered
sane under the McNaughten Rules, so that in many systems they are sent to prison inappropiately. According to this argument,
persons who can reason, but lack self-control due to a serious mental disorder, should be able to obtain a verdict of not
responsible due to a mental disability (NRDMD).
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For minor offences, the court could dismiss or stay the criminal charge while the person
completes inpatient or outpatient treatment. For example, dismissal or suspension of the
criminal charge would be desirable if the accused is clearly in need of treatment by virtue of a
severe mental disorder, and does not represent a danger to self or others. When the offence is
serious and/or the accused represents a danger to self or others, the court may order admission
to a designated mental health facility for treatment.
Safeguards need to be in place to protect the rights of persons with mental disorders so that
they do not languish in mental health facilities for longer than is necessary. Legislation should
make provisions for regular review of the individuals placement by the court, for example by
asking for a regular psychiatric report. Furthermore, all persons accused of criminal charges who
are detained in a mental health facility pending their trial have the same rights, procedures and
safeguards as persons who have been admitted involuntarily. Accordingly, they must also have
the right to seek judicial review of their detention by an independent review body such as a
tribunal or court of law.
15.2.2 Defence of criminal responsibility (mental disorder at time of offence)
Countries around the world have legislation to determine the level of criminal responsibility
attributable to an accused person. This legislation states that the mental condition of the
accused at the time of the offence has a significant bearing on whether the accused will be
subject to criminal responsibility.
A court may find that the accused could not have met the requirements to establish a guilty mind
(mens rea), if the accused is able to demonstrate that:
1. his/her mental faculties were impaired by virtue of a mental disorder at the time of the
offence; and
2. such a disorder was severe enough to render the person partially or totally incapable of
satisfying the elements required to establish criminal responsibility.
Legislation should stipulate that persons who did not have sufficient capacity at the time of the
offence be admitted to an appropriate facility. This approach supports the goal of favouring
treatment options over punishment for offenders in need of mental health care.
Under these circumstances, courts may find the accused to be not responsible due to mental
disability (NRDMD).
1
This concept is familiar in many countries under varying terminology.
Legislation can define the criteria necessary to obtain a NRDMD verdict.
2
Such a verdict should
apply to any persons with a mental disorder serious enough to impair their reasoning,
comprehension or self-control at the time the offence was committed. In the case of such a
verdict, the court may decide to release the person back into the community or order
admission/treatment. National legislation varies considerably with regard to such admissions
and discharges. In some countries a person must be discharged unless the trial court or other
judicial body finds that the person meets all of the criteria for involuntary admission and follows
the appropriate procedural requirements to involuntarily commit the person. In other countries
there may be a specific legal category (different from involuntary patients) for persons admitted
on the grounds of NRDMD. For example, in Australia they are called forensic patients; in
Mauritius, security patients; and in South Africa, State patients.
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Nonetheless, similar to other non-criminal persons with mental disorders, persons who are
detained after a NRDMD verdict have the right to regular and periodic review of their detention
and the right to receive appropriate treatment and care in a therapeutic environment. In addition,
persons admitted because they were not criminally responsible may well have the capacity to
make treatment decisions.
Sufficient improvement in the persons mental state should lead to release from detention. In
some countries it may be permitted that a health practitioner discharge a person admitted as a
mentally disordered offender. However, in other countries only a judge or other judicial authority
can order such a discharge. It is important, however, that the patient, family members and others
be allowed to make an application for discharge. For a specified period of time it may be
reasonable to require a discharged person to follow community-based treatment with enforced
compliance, on condition of returning to hospital if a relapse occurs or if the person is not
adhering to the agreed treatment plan. However, enforced community-based treatment is likely
to be subject to opposition from some user groups. Countries will have to make their own
decisions concerning this issue.
15.3 Post-trial (sentencing) stage in the criminal justice system
In some countries, a person with a mental disorder may not have met the criteria of being unfit
to stand trial or of being mentally disordered at the time of the offence, yet, having been found
guilty by the court, they may still be diverted to the mental health care system during the
sentencing stage. This can be achieved through non-custodial sentences (i.e. probation orders
and community treatment orders), or through custodial sentences served in a mental health
facility (i.e. hospital orders). The hospital order could refer to an open facility or to a more secure
facility, depending on the risk posed to the public.
15.3.1 Probation orders and community treatment orders
Legislation should allow for and encourage the use of non-custodial sentences for minor
offences by individuals with mental disorders as a substitute for incarceration in prison. Courts
in some countries already have the authority to make probation orders or community treatment
orders on the condition that such persons continue to be treated by mental health services.
Community treatment orders (CTO) allow persons with mental disorders to live in the community
subject to certain conditions, including that they:
reside at a specified place;
participate in treatment and rehabilitative activities including counselling, education and
training;
grant mental health professionals access to their homes;
report regularly to a probation officer; and
submit to involuntary psychiatric treatment, where appropriate.
15.3.2 Hospital orders
Hospital orders are another means of ensuring that a person who has been found guilty receives
the necessary mental health treatment. Legislation that provides for a hospital order allows the
court to send offenders with a mental disorder to a hospital for treatment in lieu of incarceration,
if at the time of sentencing they need hospital care.
The hospital order should not be for a duration longer than the sentence would have been. If the
court and the mental health professionals in the hospital feel that the person needs additional
treatment after the sentence would have expired, they must justify continued hospitalization
through normal involuntary admission procedures.
Offenders with mental disorders who are placed in a mental health facility, pursuant to a hospital
order, have the same rights to periodic review by an independent review body (e.g. a tribunal or
court of law) as all other involuntarily admitted patients.
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15.4 The post-sentencing (serving sentence in prison) stage
At times, an accused may develop a mental disorder following incarceration. Legislation or
administrative arrangements should contain provisions for adequate care and treatment of
prisoners mental disorders. The law must provide for transfer of prisoners with severe mental
disorders to a mental health facility for treatment if they cannot be adequately treated within the
prison. In many countries, prisons have specially designated hospital units where prisoners are
transferred if they are deemed to be ill. A review body should monitor such units to ensure that
the quality and availability of care are equivalent to services found in non-custodial mental health
facilities. Legislation must also ensure that such hospital units are under the direct supervision of
qualified mental health personnel, and not the prison authorities.
Prisoners placed in prison hospital units or transferred to other mental health facilities are entitled
to protection of their rights, and should enjoy the same protections afforded to other persons
with mental disorders. In particular, such offenders have the right to consent or refuse treatment.
If involuntary treatment is deemed necessary, the proper procedures for authorization of
involuntary treatment must be followed. Important rights include, among others, the right to be
protected from inhuman and degrading treatment, and participation in research only with valid
informed consent and protection of confidentiality. Any prisoners transferred from prison to a
hospital and then back to prison should have the time spent in hospital counted as part of their
sentence.
Furthermore, such prisoners can only be detained in the hospital for the duration of their
sentence. On expiry of their sentence term, if further involuntary admission is justified by their
mental state, they may only be detained under the civil provisions of the mental health legislation.
In addition, prisoners in such treatment facilities have the same right to be considered for parole
as they would if they were not under treatment for mental disorders. Appropriate information on
their case and treatment might, in accordance with law, be made available to the parole
authorities on a need-to-know basis or with the consent of the prisoner.
15.5 Facilities for mentally ill offenders
One of the difficulties in keeping mentally ill offenders out of prison is that many countries do not
have appropriate facilities to house people regarded as criminal and dangerous. As a result,
those with mental disorders are not only forced to stay in prison, but also are deprived of the
necessary treatment there. Provisions for secure mental health facilities may need to be
legislated. Legislative criteria can identify the levels of security required for patients, and these
levels should be reviewed regularly. In addition, no patient should stay in a hospital under a
greater level of security than is necessary.
In summary, mental health legislation can and should provide a framework for treatment and
support rather than punishment. Such a framework should also allow persons with mental
disorders to be transferred from the criminal justice system to the mental health system at any
stage. By implementing protections in the criminal justice system for people with mental
disorders, and only incarcerating them under very rare circumstances, legislation can help to
protect public safety and simultaneously provide for humane treatment of offenders with mental
disorders, allowing them to receive appropriate care and rehabilitation.
The following web sites provide information on UN principles and rules concerning prisoners,
including those who are mentally ill:
http://www.unhchr.ch/html/menu3/b/h_comp36.htm
http://www.unhchr.ch/html/menu3/b/h_comp34.htm
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Mentally ill offenders: Key issues
The criminal justice system should prefer treatment to incarceration, where possible, for
criminal offenders with mental disorders. The structure of the criminal justice system should
allow for diversion of offenders to treatment programmes at all stages of the criminal trial
process.
1. Prosecution Prosecutors should consider the following factors when deciding whether to
prosecute an individual with a mental disorder: the gravity of the offence; the persons
psychiatric history, mental state at the time of the offence, and present mental state; the
likelihood of detriment to the persons health; and the community interest in prosecution.
2. Trial stage:
a) Fitness to stand trial The law requires the mentally fit to stand trial. The ability of
the accused to understand the legal proceedings and the consequences of the
proceedings, and to communicate effectively with counsel need to be assessed. A
person found to be unfit for trial might have charges dropped or stayed while he/she
undergoes treatment. Persons detained in a mental health facility pending their trial
have the same rights as other people subject to involuntary admission, including the
right to judicial review by an independent review body.
b) Defence for criminal responsibility Persons found to have inadequate capacity at
the time of the offence should be treated rather than incarcerated. Most courts allow
a defence of not responsible due to mental disability (NRDMD) if the persons
reasoning, comprehension or self-control were impaired at the time of the offence. A
person found to be NRDMD might be released once the mental disorder sufficiently
improves.
3. Post-trial (sentencing) stage:
a) Probation orders Persons with mental disorders may receive treatment through
non-custodial probation orders and community treatment orders, which allow
treatment in the community under certain conditions. A person who does not fulfil
the designated conditions may be recalled to a custodial facility to complete
treatment.
b) Hospital orders Treatment may be offered through a hospital order (i.e. a custodial
sentence served in a mental health facility). A person subject to a hospital order may
not be detained for treatment for a period longer than what would have been imposed
by the sentence, unless subsequent involuntary admission procedures are followed.
Persons subject to hospital orders have a right to periodic review of their detention
by an independent review body.
4. Post-sentencing (serving sentence in prison) stage:
a) Transfer of prisoners A person who develops a mental disorder after incarceration
may be transferred to a prison hospital unit or another secure mental health facility
to receive mental health treatment. Prisoners so transferred have rights similar to
other involuntarily confined persons, such as the right to consent to treatment, to
confidentiality and to be protected from inhuman and degrading treatment.
Prisoners also have the right to be considered for parole. A prisoner may not be
detained for treatment for a period longer than the sentence that would have been
imposed, unless subsequent involuntary admission procedures are followed.
Facilities for mentally ill offenders
Provisions for secure mental health facilities may need to be legislated. Legislative criteria can
identify the levels of security required for patients, and these levels should be reviewed
regularly. No patient should stay in a hospital at a greater level of security than is necessary.
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16. Additional substantive provisions affecting mental health
The welfare and well-being of people with mental disorders will be significantly enhanced by
legislation that addresses the issues already discussed in this chapter: access; rights; voluntary
and involuntary mental health care; review mechanisms and provisions related to mentally ill
offenders. In addition, there are a number of other areas that are equally important in furthering
mental health and well-being that can be effectively legislated, but which have been neglected
historically. However, it is not possible to cover every issue in this Resource Book, and to discuss
the full complexity of each point, but the following are pointers to areas that may be included in
national legislation. In many countries these may be contained in legislation other than a specific
mental health law.
16.1 Anti-discrimination legislation
Legislation should protect people with mental disorders from discrimination. In many instances,
countries have antidiscrimination, and even affirmative action, legislation for the protection of
vulnerable populations, minorities and underprivileged groups. Such legislation can also be
made applicable to persons with mental disorders by specifically including them as beneficiaries
in the statute. Alternatively, if general antidiscrimination legislation does not provide them with
adequate protection, antidiscrimination provisions for people with mental disorders can be
specifically included in mental health legislation. For example, in some countries people with
mental disorders are not allowed to study in some schools, be in some public places, or travel
in aeroplanes. Specific legislation may be required to rectify this.
As another legislative alternative, if, for example, a country has a Bill of Rights or other rights
document, it should specify the grounds on which it is unlawful to discriminate, and this should
encompass people with mental disorders. The New Zealand Bill of Rights Act (1990) for
example, prohibits discrimination on the grounds of disability among other things.
16.2 General health care
Persons with mental disorders may need legislative protection for their interaction with the
general health care system, including access to treatment, quality of treatment offered,
confidentiality, consent to treatment and access to information. Special clauses can be inserted
into general health care legislation to emphasize the need for protection of vulnerable
populations such as those with mental disorders and those who lack the capacity to make
decisions for themselves.
16.3 Housing
Legislation could incorporate provisions for giving persons with mental disorders priority in State
housing schemes and subsidized housing schemes. For example, the Finland Mental Health Act
states, In addition to adequate treatment and services, a person suffering from a mental illness
or some other mental disorder must be provided with a service flat and subsidized
accommodation appropriate to the necessary medical or social rehabilitation as separately
decreed (Mental Health Act, No. 1116, 1990, Finland).
Such provisions may not be possible in some countries, but, at the very least, people with
mental disorders should not be discriminated against in the allocation of housing. Legislation can
also mandate governments to establish a range of housing facilities such as halfway homes and
long-stay supported homes. Legislation should include provisions to prevent geographical
segregation of persons with mental disorders. This may require specific provisions in appropriate
legislation to prevent discrimination in location and allocation of housing for persons with mental
disorders.
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16.4 Employment
Legislation could include provisions for the protection of persons with mental disorders from
discrimination and exploitation in employment and equal employment opportunities. It could also
promote reintegration into the workplace for people who have experienced a mental disorder,
and ensure protection from dismissal from work solely on account of mental disorder. Legislation
could also promote reasonable accommodation within the workplace, whereby employees
with mental disorders are to be provided with a degree of flexibility in their working hours in order
to be able to seek mental health treatment. For example, an employee could take time off to
receive counselling and make up for that time later in the day.
The Rio Negro (Argentina) Act for the Promotion of Health Care and Social Services for Persons
with Mental Illness (Act 2440, 1989) states that the province shall ensure that appropriate
measures to ensure access to work, which is a decisive factor in the recovery of persons with
mental illness, are taken. It further decrees that a commission be established to examine the
issue of work promotion, which will propose appropriate permanent measures to guarantee
access to work for persons covered by the Act.
Laws can also contain provisions for establishing adequate funding of vocational rehabilitation
programmes, provisions for preferential financing for income-generating activities by people with
mental disorders residing in the community, and general affirmative action programmes to
improve access to jobs and paid employment. Employment legislation can also provide
protection to persons with mental disorders working in sheltered work schemes to ensure they
are remunerated at a comparable rate to others and that there is no forced or coercive labour in
such sheltered schemes.
Employment legislation that incorporates provisions concerning maternity leave, especially paid
maternity leave, has proved effective as a health promotion tool in many countries. It allows new
mothers to spend more time with their infants and facilitates the establishment of affective
bonds, thus promoting good mental health for both infant and mother.
16.5 Social security
The payment of disability grants can represent a huge benefit for people with mental disorders,
and should be encouraged through legislation. Where pensions are provided, disability pensions
for persons with mental disorders should be paid at a similar rate as pensions granted to
persons with physical disabilities. The social security legislation needs to be flexible enough to
allow people with mental disorders to get back into employment, especially part-time
employment, without losing the benefits of their disability pension.
16.6 Civil issues
Persons with mental disorders have the right to exercise all civil, political, economic, social and
cultural rights as recognized in the Universal Declaration of Human Rights, The International
Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and
Political Rights.
Some of the key rights (often denied to people with mental disorders) that need to be protected
are mentioned below. This is not an exhaustive list; it merely illustrates the wide range of rights
that may need to be protected. However, some of these rights are subject to limitations based
on a persons capacity at a given point in time.
Right to vote
Right to marry
Right to have children and to maintain parental rights
Right to own property
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Right to work and employment
Right to education
Right to freedom of movement and choice of residence
Right to health
Right to a fair trial and due process of law
Right to sign cheques and engage in other financial transactions
Right to religious freedom and practice
Additional substantive provisions relating to mental health: Key issues
There are a number of important areas of mental well-being that can be effectively legislated
but which have been neglected historically. These include the following:
Legislation should protect people with mental disorders from discrimination.
People with mental disorders may need legislative protection in their interaction with the
general health care system, including access to treatment, quality of treatment offered,
confidentiality, consent to treatment and access to information.
Legislation can incorporate provisions for giving persons with mental disorders priority in
State housing schemes and those granting subsidized housing.
Legislation can mandate governments to establish a range of housing facilities such as
halfway homes and long-stay, supported homes.
Legislation can include provisions for the protection of people with mental disorders from
discrimination and exploitation in employment and equal employment opportunities.
Legislation can promote reasonable accommodation for employees with mental disorders,
by providing them with a degree of flexibility in working hours, to enable them to seek
mental health treatment.
Employment legislation can provide protection to persons with mental disorders who are
employed in sheltered work schemes to ensure that they are remunerated at a comparable
rate to others, and that there is no forced or coercive labour in such sheltered schemes.
Where pensions are provided, disability pensions for persons with mental disorders should
be paid at a similar rate as pensions granted to persons with physical disabilities.
People with mental disorders should retain the right to vote, to marry, to have children, to
own property, to work and employment, to education, to freedom of movement and choice
of residence, to health, to a fair trial and due process of law, to sign cheques and engage in
other financial transactions, and to religious freedom and practice.
17. Protections for vulnerable groups minors, women, minorities and refugees
The need for specific legislation for minors, women, minorities and refugees affected by mental
disorders would probably be unnecessary if practice showed that these vulnerable groups
received adequate and nondiscriminatory treatment and services. However, in reality these
groups are discriminated against and serious inequities do exist. The extent and form of these
problems vary from country to country, and the specific issues that different countries need to
address through legislation also differ. Nonetheless, no country is immune to discrimination
against vulnerable groups, and thus some aspects of the following sections will be relevant for
all countries.
17.1 Minors
Legislation protecting the human rights of children and adolescents should take account of their
particular vulnerabilities. It should specifically aim to respect, protect and fulfil their rights, as laid
out in the UN Convention on the Rights of the Child (1990) and other relevant international
instruments.
In many countries there are no specialized mental health services for minors, and legislation can
therefore play an important role in promoting the establishment of and access to such services.
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Legislation should specifically discourage the involuntary admission of minors in mental health
facilities. Hospitalization may be appropriate only when community-based alternatives are not
available, are unlikely to be effective or have been tried and failed. If minors are placed in
institutional settings, their living area must be separate from that of adults. The living environment
in mental health facilities should be age-appropriate, and take into account the developmental
needs of minors (e.g. provision of a play area, age-appropriate toys and recreational activities,
access to schooling and education). While different countries will be able to fulfil these objectives
to varying degrees, all countries should take positive steps towards realizing these objectives
and consider allocating additional resources for this purpose.
Minors should have access to a personal representative to adequately represent their interests,
especially when admitted to mental health facilities and throughout the course of such
admission. In most instances, their personal representative would be a family member. However,
where there is potential or real conflict of interest, there should be legal provisions for the
appointment of another independent personal representative. In these cases, legislation may
make the State responsible for remunerating such a personal representative.
Consent to treatment of minors also needs attention in legislation. Many jurisdictions use age
(usually 18 years) as the sole criterion for determining a minors right to consent or refuse
consent. However, a significant number of minors, especially teenagers, have sufficient maturity
and understanding to be able to consent or withhold consent. Legislation may contain provisions
to encourage taking into consideration minors opinions in consent issues, depending on their
age and maturity.
Legislation may ban the use of irreversible treatment procedures on children, especially
psychosurgery and sterilization.
17.2 Women
Stark gender inequalities and discrimination are a matter of fact in many societies around the
world. Inequities and discriminatory practices can cause and exacerbate mental disorders in
women. Women are often discriminated against in terms of access to mental health services for
reasons such as lack of money and a perception of their lack of importance in society. Legislation
may actively counter such inequalities and discrimination. The Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW), which defines what constitutes
discrimination against women and sets up an agenda for national action to end such
discrimination, represents a useful instrument to guide the development of legislation in this area.
Women who are admitted to mental health facilities should have adequate privacy. Legislation
can ensure that all mental health facilities have separate sleeping facilities (single-sex wards) for
women, and that such living facilities are of adequate quality and comparable to those provided
to men. Legislation may also explicitly protect women from sexual abuse and physical
exploitation by male patients and male employees of mental hospitals.
The post-partum period is a time of high risk of mental disorders for women. Treatment facilities
for post-partum mental disorders should take into account the unique needs of post-partum
women and provide adequate facilities for nursing mothers. In particular, if nursing mothers are
admitted to a mental health facility they should not be separated from their infants. The mental
health facility may have nursery facilities and skilled staff who can provide care to both mother
and baby. Legislation can assist in achieving these goals.
Protection of confidentiality is of particular importance in societies where information concerning
a woman can be used against her in some way. Legislation may specifically state that
information regarding mental health matters in such situations is never released without the
explicit consent of the woman concerned. Legislation should also encourage mental health
professionals to take into account the pressures faced by women in many societies to consent
to release information to family members.
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In countries where women are detained in hospitals on social and cultural grounds it is necessary
that legislation explicitly state the illegality of such a practice. Legislation should promote equal
access to mental health services, including community-based treatment and rehabilitation
facilities for women. Women should also have equal rights to men in relation to issues of
involuntary admission and treatment. Legislation could insist that a review body undertake
separate and specific monitoring of the proportion of women admitted involuntarily to mental
health facilities in order to assess potential discrimination.
17.3 Minorities
Discrimination in the provision of mental health services to minorities takes many forms. For
example:
minorities may be denied access to community-based treatment facilities and be offered
treatment in inpatient facilities instead;
minorities have been found to have higher rates of involuntary admission;
social and cultural norms of behaviour which may be different for minorities are sometimes
interpreted as signs of mental disorders and lead to involuntary admission;
minorities are more likely to receive involuntary treatment when in mental health facilities;
the living environment of mental health facilities does not take into account the unique
cultural and social needs of minorities;
minorities with mental disorders are more likely to be arrested for minor behavioural problems
leading to higher rates of contact with the criminal justice system.
Legislation may specifically provide protection against such discriminatory practices. For
example, legislation could stipulate that a review body monitor involuntary admissions and
involuntary treatment of minorities, ensure that accreditation criteria for mental health facilities
include provision of culturally appropriate living environments, and monitor the provision of
community-based treatment and rehabilitation services to minorities.
Example: Protecting the interests of women and minorities in Australia
To protect women and minorities, the Australian Mental Health Act states that the members of
the Mental Health Tribunal are to include 1 or more women and 1 or more persons of ethnic
background.
(New South Wales Mental Health Act 1990)
17.4 Refugees
In some countries, refugees and asylum seekers often receive inappropriate treatment that
causes or exacerbates mental disorders. However, they are not afforded the same mental health
treatment as citizens of that country. This violates Article 12 of the ICESCR, which recognises
the right of everyone to the enjoyment of the highest attainable standard of physical and mental
health.
Legislation can stipulate that refugees are entitled to the same mental health treatment as
citizens of the host country.
Protections for vulnerable groups: Key issues
Legislation protecting the human rights of children and adolescents should take account of
their particular vulnerabilities.
Legislation can promote the establishment of and access to specialized mental health
services for minors.
Legislation may actively discourage the involuntary admission of minors in mental health
facilities.
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Minors must have access to a personal representative to adequately represent their
interests, especially when admitted to mental health facilities, and throughout the course of
such admission.
Inequities and discriminatory practices can both cause and exacerbate mental disorders in
women.
Women should have separate sleeping facilities (single-sex wards), and their living facilities
should be of adequate quality and comparable to the living facilities provided to men.
In countries where women are detained in hospitals on social or cultural grounds, it is
necessary that legislation explicitly state the illegality of such a practice.
Legislation may specifically provide protection against discriminatory practices directed
towards minorities. For example, legislation could stipulate that the review body must
monitor involuntary admissions and involuntary treatment of minorities, and the provision
of community-based treatment and rehabilitation services to minorities.
Refugees should be afforded the same mental health treatment as citizens of the host country.
18. Offences and penalties
A law is not written with the intention of prosecuting people who do not adhere to its provisions,
but rather to guide and direct people in terms of what a (hopefully) democratically constituted
legislature, after consultation and debate, has deemed necessary and appropriate for the
country. When a law is transgressed, however, the criminal justice system of a country has the
power to take actions to prosecute and punish offenders. This gives legislation a special position
relative to, for example, a countrys policy or strategic plans.
Like other issues that have been covered in this chapter, dealing with offences and penalties will
vary from country to country. Nonetheless, in many countries, unless specific guidance is given
in the law regarding the level and extent of penalties to be awarded for particular offences, the
courts may be unable to act effectively when the law is transgressed. As a result, the laws
potential to promote mental health may not be fully realized. The law should therefore specify the
appropriate punishment for different offences, and may indicate the severity of penalties to be
handed out for particular transgressions, taking account of the fact that not all transgressions
are equally serious.
Examples: Offences and penalties
The following are illustrations of how different legislative systems provide for offences and
penalties within their mental health law. These examples are for illustrative purposes only and
it will be up to each individual country to determine the system for offences and penalties to be
adopted for their national legislation.
Japan
In Japan, the law concerning the Mental Health and Welfare of the Mentally Disordered Person
(Law 94, 1995) outlines a range of different penalties for various transgressions. For example:
A person to which any of the following items are applicable shall be punished with penal
servitude for not more than three (3) years or a fine of not more than one million yen:
(i) a person who violates an order of discharge under paragraph 5 of Article 38.5;
(ii) a person who violates an order under paragraph 2 of Article 38.7;
(iii) a person who violates an order under paragraph 3 of Article 38.7.
The administrator of a mental hospital, the designated physician, the member of the
psychiatric review board [and various other people mentioned] shall be punished with
penal servitude for not more than one year or a fine of not more than five thousand yen if
he/she, without due cause, discloses a secret that has come to him/her in the course of
execution of duties under this law.
87
Kenya
The Mental Health Act (Act No 7, 1989) in Kenya lists a number of actions that are regarded as
offences in terms of the Act. It then states:
Any person who is guilty of an offence under this Act, or who contravenes any of the
provisions of this Act or of any regulation made under this Act shall, where no other
penalty is expressly provided, be liable on conviction to a fine not exceeding ten
thousand shillings or to imprisonment for a term not exceeding twelve months or both.
Australia
In New South Wales, a system of penalty units is used. This precludes the need to regularly
change every piece of legislation where a specific penalty is prescribed in order, for example, to
keep up with inflation or other economic fluctuations. For instance, a maximum of 50 penalty
units could be awarded for disclosure of information or refusing to obey or comply with an
order, direction or decision of the review tribunal, a magistrate or the Psychosurgery Review
Board, while a maximum penalty of 10 units is assessed for a person who operates a residential
facility without a licence.
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1. Introduction
This chapter covers the legislative process, starting from the drafting of mental health legislation
to its effective implementation. The discussion focuses on the how to of mental health
legislation relative to the why of Chapter 1 and the what (or content) of Chapter 2. It outlines
the preliminary steps that may be taken by countries before embarking on the drafting process,
as well as the steps for drafting, adopting and implementing mental health legislation. This
chapter also provides country examples highlighting possible difficulties in and solutions to
the process aspects of mental health legislation.
As with legislative content, the legislative process will depend on local norms and customs in
countries for the drafting, adoption and implementation of legislation. Important practices are
outlined and discussed here, but it should be pointed out that these are only guiding principles;
each country will follow its own established legal processes and procedures.
Figure 2 outlines four stages that most countries will undertake in enacting legislation: preliminary
steps, drafting legislation, adopting legislation and implementing legislation. This chapter
discusses these steps.
Chapter 3 Context of mental health legislation
Process: drafting, adopting
and implementing mental health legislation
89
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2. Preliminary activities
Before embarking on drafting mental health legislation, there are a number of preliminary steps
that can be useful in deciding the content of such legislation. These steps include:
1. Identifying the countrys principal mental health needs and problems as well as existing
and likely barriers to the implementation of mental health policies, plans and programmes.
2. Examining existing mental health law and/or identifying general laws that address mental
health issues, looking at specific aspects that are lacking or in need of reform, and
examining barriers and problems with respect to their implementation.
3. Studying those international human rights conventions and standards that include
provisions related to mental health, and identifying governments obligations for fulfilling
the requirements of those instruments.
4. Studying components of mental health legislation in other countries, especially those with
similar economic and political structures, and similar social and cultural backgrounds.
5. Building a consensus and negotiating for change.
6. Educating the public on issues of mental health and human rights.
In many countries it is the professionals in charge of mental health at the ministry of health who
will have to initiate these preliminary activities. However, in some countries there are law
commissions or similar bodies whose mandate is to identify legal areas needing reform that
conduct necessary research and make recommendations for change. In other situations it is the
legal unit within a ministry that is responsible for the development of all legislation.
In countries where user, family, advocacy or professional groups and organizations identify the
need for mental health legislation (or a change to the existing law), it is incumbent upon them to
advocate initiation of new legislation and explain why a law (or an amendment) is necessary.
Example: Initiating law reform in the Republic of Korea
In 1992 in the Republic of Korea, a group of young psychiatrists felt strongly about the need for
an innovative mental health policy. They were strong advocates for human rights,
deinstitutionalization and community-based mental health services. They interacted with
government officials in the Ministry of Public Health and Welfare, and together they initiated the
task of formulating a new mental health law. After two years of preparation and consultation, the
Government completed a draft, which was presented to the National Assembly for deliberation.
In December 1995, the new Mental Health Law was passed.
(Personal communication, Dr Tae-Yeon Hwang, Director, Department of Psychiatric
Rehabilitation and Community Mental Health, WHO Collaborating Centre for Psychosocial
Rehabilitation and Community Mental health, Yongin Mental Hospital)
2.1 Identifying mental disorders and barriers to mental health care
The first step is to obtain reliable information about mental disorders in the entire country, and
variations in different regions and population groups (if these occur). The most reliable source of
such information is community-based epidemiological studies. However, there is a paucity of
good quality epidemiological data in many developing (and even in some developed) countries.
When community-based epidemiological data is unavailable or unreliable, planners and policy-
makers can collect information from other sources. For example:
a) Quantitative data from treatment settings can provide a rough estimate of the level of
need for mental health services and prevalence of mental disorders. However, it is well
known that only a small proportion of persons with mental disorders, and in need of
mental health services, approach clinical services for help; but calculations can be
done to estimate true prevalence (for further details, see Module on Planning and
Budgeting Services for Mental Health (WHO, 2003a):
http://www.who.int/mental_health/resources/policy_services/en/).
92
b) Qualitative information from focus group interviews and interviews with key informants
can provide useful information at low cost (Arjonilla, Parada & Pelcastre, 2000).
c) In some cases, information obtained in one country can be applied to other countries
with similar cultural and social characteristics.
It is also important to get a clear understanding of the barriers and obstacles to good quality
mental health care. Legislation can be used to overcome or break down some of these barriers.
The examples in the box below illustrate some of the barriers that can be tackled by legislative
efforts, and identifies priority areas for legislation.
Examples of barriers and obstacles to good quality
mental health care that legislation can help to overcome
A lack of mental health services in some areas or in the country as a whole.
The cost of mental health care is unaffordable to many, and health insurance offers partial
or no coverage for mental health treatments.
The quality of care provided in mental hospitals is poor and the living conditions are
inadequate, leading to human rights violations.
Regulations and checks concerning involuntary admission and treatment are usually lacking,
and this is often associated with loss of liberty.
Stigma and discrimination associated with mental disorders negatively affect access to care,
as well as the social integration of those suffering from mental disorders.
Persons with mental disorders are denied basic civil, political, economic, social and cultural
rights such as the right to social participation, cultural expression, voting, freedom of
opinion, housing, employment and education.
Mental disorders can affect peoples ability to defend their own rights and to express their
needs and interests.
Some social conditions or cultural practices damage the mental health of some population
groups.
A lack of resources for mental health services and programmes.
2.2 Mapping of mental-health-related legislation
Some countries have a long history of mental health legislation and mental-health-related
legislation, while other countries may be developing such legislation for the first time. The
mapping of existing legislation will therefore be very different. For countries with specific mental
health laws, these laws will need to be carefully examined as a basis for new legislation. In
addition, components of other laws, as they relate to mental health, need to be found and
assessed. For countries with no specific mental health legislation, there are still likely to be laws
that affect mental health which need to be identified and analysed.
Mapping of mental-health-related legislation is very helpful in providing an overview of the
different laws that can contribute to achieving the objectives of mental health policies and
programmes, and for assessing which laws may need to be changed. A systematic and critical
review of existing legislation can help identify legal aspects that are lacking, or in need of reform,
in order to protect the rights or ensure access to treatment of persons with mental disorders, as
well as to facilitate promotion and prevention in the mental health field. Occasionally, it will be
found that countries have adequate provisions in existing legislation, but that the problem really
lies in their implementation. In these cases, there may be little need to alter, modify, amend or
introduce new legislation.
The WHO Checklist on Mental Health Legislation, which is a companion to this Resource Book,
is a useful tool that can be used to help determine the strengths and weaknesses of existing
legislation and identify what provisions need to be considered for inclusion in a new law (see
Annex 1).
93
Example: Mapping legislation in Samoa
In developing new mental health legislation in Samoa, 32 different Acts that were relevant to
mental health were examined. These included the Citizenship Act (1972), Criminal Procedure Act
(1972), Health Ordinance (1959), Komesina o sulufaiga (Ombudsman) Act (1988), Mental Health
Ordinance 91961), Ministry of Womens Affairs Act (1990), Pharmacy Act (1976) and Trustees
Act (1975).
(WHO Mission Report, 2003)
2.3 Studying international conventions and standards
Countries that have ratified international human rights conventions have an obligation to protect,
respect and fulfil the rights that are enshrined in those instruments through legislation, policy and
other measures.
As discussed in Chapter 1, the International Covenant on Civil and Political Rights (ICCPR, 1966)
and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)
represent two key international instruments that have been ratified by the majority of countries
in the world. It is therefore important that these instruments be reviewed thoroughly when mental
health legislation is being planned. Various international standards though not legally binding
represent international consensus on accepted good practice standards, and provide a useful
framework for developing and implementing legislation and policy on mental health. These
include the MI Principles, the Standard Rules, the Declaration of Caracas, the Declaration of
Madrid and the WHO Mental Health Care Law: Ten Basic Principles (see Chapter 1, sections 6
and 7).
2.4 Reviewing mental health legislation in other countries
Reviewing other countries legislation related to mental health issues gives a good idea of the
components generally included in legislation in different countries. While conducting such a
review it is important to remember that many countries still have outdated legislation. The review
should therefore focus on countries that have enacted progressive legislation that reflects
international human rights standards and current knowledge in the area of mental health
treatment and care. It should also critically examine the effect of legislation in improving the
situation for those with mental disorders in those countries. Reasons for failure may include
badly drafted legislation and implementation difficulties resulting from legislative provisions that
do not take into account the practical realities in the country. A useful resource for accessing
legislation from different countries is the WHO International Digest of Health Legislation (IDHL)
online database (http://www.who.int/idhl).
An example of badly drafted legislation is a legislative provision that demands certification from
at least two psychiatrists before compulsory admission to a hospital in countries where there are
so few psychiatrists that this requirement is impossible to fulfil. Though the purpose of the
provision is to provide adequate protection against compulsory admission, the result could be
the opposite. In many cases, because the provision is impossible to carry out, it is simply
ignored, and professionals and family members continue with existing and often inadequate
practices for enforcing compulsory admission. In other instances, in seeking to comply with the
law by trying to find two psychiatrists, a person who requires involuntary admission and
treatment will receive no care; this can also be considered an abuse of human rights. A better
option would be to demand certification by two mental health professionals at least one of whom
must be a psychiatrist. Other mental health professionals could include psychiatric social
workers, psychologists and psychiatric nurses, thus increasing the pool of mental health
professionals available for certification and meeting the need for adequate protection of persons
with mental disorders.
Obstacles
Tension between those in favour of an
individual human-rights-based approach to
legislation and those who emphasize public
safety.
Tension between medical hegemony versus a
human rights approach to legislation. That
is, differences between people who believe
that the medical professionals know what is
best for a patient and those who believe the
user knows best.
Conflicts between those who favour mental
health legislation solely concerning
treatment and patients rights and those
who favour legislation relating also to
promotion and prevention.
Tension between the rights and
responsibilities of families and the rights
and responsibilities of users.
Resistance from psychiatrists who perceive
provisions established in legislation and
regulations as undermining clinical
autonomy.
Low priority to mental health legislation by
government, parliament and sectors outside
the health sector.
Resistance from the general public to
human-rights-oriented legislation.
Facilitating factors
Formulating mental health law taking a
needs-based approach (i.e. addressing user
needs as well as the needs of society in
general).
Formulating a mental health law from a user
perspective, and through a participative
process involving many sectors and
disciplines.
Appoint representatives from both interest
groups to the drafting body.
Workshops with representatives from families
and user organizations to examine and
discuss the key issues and interests of each
group. Include both groups in the drafting
body.
Seminars on patients rights and medical
ethics with the participation of experts in
these areas.
Empowerment of organizations of users,
carers and other advocacy groups.
Lobbying legislators and finding individual
legislators who may be prepared to push for
mental health legislation. For further details,
see Module on Advocacy for Mental Health
(WHO 2003b): http://www.who.int/
mental_health/resources/policy_services/en/)
Information and education of the public.
When examining another countrys mental health law there may be social, economic and cultural
variables or factors specific to that country. Certain provisions may therefore not be applicable
in ones own country. For example, a country may restrict guardianship to members of a persons
immediate family or refer to the spouse of a patient. This would be inappropriate in a country
where an extended family has culturally determined rights with respect to a person or where
polygamous marriages are allowed. Thus there may be a need to modify and adapt the
provisions to suit the social, economic and cultural situation of that particular country.
Examples of obstacles and facilitating factors with respect to
formulating mental health legislation
94
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The box above provides examples of certain obstacles and facilitating factors to the process of
formulating mental health legislation. Each country will face particular obstacles specific to its
situation and conditions, and the examples are by no means exhaustive.
2.5 Building a consensus and negotiating for change
The previous chapter provided guidance on the issues that should be included in new legislation
and/or that should direct necessary amendments and modifications to existing legislation.
However, a consensus needs to be built around these issues. The stakeholders include
politicians and parliamentarians, policy-makers, government ministries (health, social welfare,
law and finance), professionals (psychiatrists, psychologists, psychiatric nurses and social
workers), family members of those with mental disorders, users and user groups, advocacy
organizations, service providers, nongovernmental organizations, civil rights groups, religious
organizations and congregations of particular communities. In some countries it may also be
necessary to include community leaders and traditional healers in the process.
Consensus building and negotiation have an important role to play, not only in drafting the
legislation but also in ensuring that legislation is implemented once it is adopted. A broad
consensus is also necessary because mental health legislation cannot be embraced by any
society unless misconceptions, misapprehensions and fears relating to mental disorders are
addressed.
2.6 Educating the public on issues concerning mental health and human rights
Due to a lack of understanding of mental health issues among the general public, in many
countries there is resistance, and sometimes opposition, to human-rights-oriented mental health
legislation. There is also considerable stigma and discrimination against people with mental
disorders. This may lead to public opposition to the legislation while it is being processed
through the legislature, or even to an undermining of the legislation once it is passed.
It is important that the public be informed and educated about what a mental disorder is and
what rights people with mental disorders are entitled to. This would greatly facilitate the process
of drafting, adopting and implementing legislation.
Preliminary activities in drafting mental health legislation: Key issues
The process for new mental health legislation may be initiated by professionals responsible
for mental health in a ministry, a law commission (or similar body), the legal unit within a
ministry, an NGO, or by user, family, advocacy, professional or other group that identifies
the need.
. Information about mental disorders, needs and barriers can be obtained from
epidemiological studies, gathering quantitative information (e.g. from treatment settings),
conducting qualitative studies (e.g. focus groups of users) or extrapolating from other
countries with similar social and cultural characteristics.
Barriers that can be addressed by legislation should be identified.
Assessment of all legislation relevant to mental health should be undertaken and reviewed.
International conventions and standards should be thoroughly studied to ensure that
internationally accepted rights are included in the legislation.
Careful examination of progressive laws of other countries, as well as consideration of the
elements that made the implementation of these laws effective, can provide useful guidance
for the development of a national law. However, the feasibility and applicability within any
specific country must be carefully evaluated.
96
The process of building a consensus for mental health legislation should begin as early as
possible so that different views can be incorporated and subsequent implementation
facilitated.
3. Drafting mental health legislation
3.1 The drafting process
The process of drafting new legislation varies in different countries depending on the particular
legislative, administrative and political structures. This Resource Book does not seek to interfere
with these well-established mechanisms that are locally developed and accepted. A number of
factors determine how often new legislation is drafted and by whom. It has been suggested that
legislation should probably be reviewed every 5 to 10 years, but if there are problems with the
content or implementation of the current law, then it should be reviewed as soon as possible. In
some countries the law includes a power to remove difficulties that allows certain changes to
be made which are not fundamental in structure and effect, but which may be necessary to
enable the legislation to better serve the purpose for which it was passed without having to
wait for the legislative process. The mental health law in India for example, states, If any difficulty
arises in giving effect to the provisions of this Act in any State, the State Government may, by
order, do anything not inconsistent with such provisions which appears to it to be necessary or
expedient for the purpose of removing the difficulty. (Article 97 of the Indian Mental Health Act,
1987).
In some countries, a specially constituted drafting committee is appointed by the legislature, or
the relevant ministry is given the task of drafting the law; other countries have a law commission
or a similar body that conducts this function (see section 2 above). In countries that lack well
defined structures for drafting new legislation, the mental health section in the ministry can play
an important facilitative role.
Example: The drafting process in Portugal and South Africa
In Portugal, following a National Conference of major stakeholders where a set of
recommendations for new legislation was approved, the Ministries of Health and Justice
nominated two working groups and charged them with writing the draft of new mental health
legislation. One group worked on aspects related to mental health policy and patient rights,
while the other group dealt with the regulation of compulsory treatment. This process took
more than two years and involved extensive consultation with many different groups.
(Personal communication, Dr JM Caldas de Almeida, Regional Adviser for WHO Region of the
Americas, 2003.)
In South Africa the need for new legislation was identified by the Department of Health, in part
because a number of clauses of the existing legislation were seen as unconstitutional following
the political change from apartheid to democracy. The Directorate responsible for Mental
Health was mandated with coordinating a consultative and drafting process. The process, from
conception to passage by Parliament, took approximately five years.
(Personal communication, Prof. M Freeman, Department of Health, South Africa, 2003)
The crucial point is not which body drafts the legislation, but rather, that there is significant and
sufficient expertise contributing to the process to ensure that the bill produced is thorough,
comprehensive, reflects a balance of competing (though reasonable) ideologies, has adequately
considered all the available relevant information, and is able to produce a substantive draft
appropriate to the local circumstances. Some countries may choose to appoint a committee
97
made up of a number of people who themselves are able to fulfil all the criteria and produce the
draft. Other countries may appoint only one or two people to draft the legislation, with a mandate
to draw on the skills of others with the relevant expertise and representing different interests to
ensure that the above criteria are met. A mix of these models is also possible.
Such decisions will depend on factors such as the availability of expertise, costs of different
approaches relative to funds available, and an assessment of which approach is likely to be most
effective in that country. The scope of the proposed legislation will also determine the
composition and breadth of consultation. For example, a country which chooses to have
comprehensive legislation covering all issues of relevance to persons with mental disorders will
require experts who can advise on aspects such as housing, employment, social benefits,
welfare and justice.
In most countries, the drafting body will need to draw on the expertise of the following:
a representative from the ministry of health, usually the professional in charge of mental
health, who can chair the committee, coordinate the process or act as executive secretary;
representatives from the other ministries involved (e.g. finance, education, employment,
housing, social security and justice);
mental health professionals;
lawyers with expertise in mental health and other sectors;
people (legal or other) with expertise in human rights;
representatives of users, family and carers;
nongovernmental organizations representing the interests of people with mental disorders;
experts with experience of working with minorities and other vulnerable groups (e.g. women,
children and the elderly);
legislators with an interest in mental health issues.
Despite the inclusiveness proposed for this stage of development of the legislation, the draft
produced should still be subjected to a number of further processes through which additional
(or the same) stakeholders will have the opportunity to provide input and influence the final
legislation (see subsection 3.3 below).
3.2 The need for consultation
Once legislation is drafted, it should be put forward for consultation to all the key stakeholders
in the mental health field. Through the consultation process, potential weaknesses of the
proposed legislation can be ironed out, conflicts with existing legislation and local customary
practices rectified, issues that have been inadvertently left out can be added and solutions to
practical difficulties in implementation can be corrected.
If well planned and executed systematically, consultation also has the potential to influence
positively the adoption of the proposed legislation and its implementation, once enacted.
Consultation provides an opportunity to raise public awareness about the needs of people with
mental disorders and the prevention of such disorders. It also involves the community and thus
enhances the visibility of the burden of mental disorders. All these factors increase the likelihood
of effective implementation of the legislation once it is enacted.
3.3 Inviting consultation
In many countries there will be a statutory as well as a slightly less formal consultation process.
Before legislation is submitted to the legislature, many countries publish a draft copy in a formal
publication such as a government gazette. The public is then given a particular time frame (e.g.
three months) for comment. All comments received must be carefully considered and
appropriate changes made. However, at this point, extensive consultation should already have
taken place. The following paragraphs deal with this non-statutory stage of the consultation
process.
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Consultation should be undertaken with users of mental health services, families of persons with
mental disorders, advocacy organizations, NGOs, professional groups, governmental bodies
and departments, service providers, community representatives and any others who will be
directly or indirectly affected by the legislation. Many of these would already have been involved
in the initial drafting, though this stage offers an opportunity for wider consultation. Each of these
interest groups may include many subgroups that may have distinctly different perspectives.
(See also, Mental Health Policy and Service Guidance Package: Advocacy for Mental Health
(WHO, 2003b) at: http://www.who.int/mental_health/resources/policy_services/en/).
Within the government, the ministries responsible for health, welfare/social services, education,
employment, justice, police, correctional services, finance, housing (and possibly others) are
involved and need to be consulted. The exact division of responsibilities between government
departments varies in different countries. In some countries the department of health will have
jurisdiction over care and treatment aspects of the proposed legislation, while the needs for
rehabilitation and prevention may be the responsibility of the department of welfare/social
services. In other countries all these functions may fall under the department of health.
Whichever framework is in place, consultation with both the health and welfare departments
would be essential to avoid overlaps, duplication or conflicts. The department of finance would
also need to be consulted, as the proposed legislation is likely to have financial implications for
public and private service providers, and there are likely to be costs in setting up the regulatory
and monitoring agencies. This departments support and commitment to the legislation is
therefore crucial to ensure adequate financial provision for effective implementation of the
legislation. Consultation would similarly be required with other government departments
concerning those sections of the legislation relevant to them.
Professional groups, including psychiatrists, nurses, psychologists, psychiatric social workers,
therapists, rehabilitation professionals and other professionals who interact with the mental
health system will have day-to-day responsibility for implementing the provisions of mental health
legislation. These groups are likely to be able to identify specific implementation difficulties in
treatment and care practice. It is therefore essential that their views be taken into consideration
when legislation is being drafted.
Users are the primary beneficiaries of the law and their input and involvement is crucial. In many
countries, families are more often than not the primary care givers, and are therefore also directly
concerned with such legislation. There is, at times, tension among user groups and groups
representing family members of people with mental disorders in their orientation and ideological
stance towards mental health treatment and legislation. It is important that the consultation
process embrace all opinions in this regard. In some countries, especially those where user and
family advocacy groups have been established for some time, and where an ethic of respect for
the view of the patient is entrenched, it is relatively easy to get useful inputs from these groups.
However, in many countries this can be a major difficulty. People with mental disorders often feel
completely disempowered, and many come from disadvantaged communities where their
opinions are generally not sought. The hegemony of doctors and other health professionals is
also often an obstacle to getting users and families perspectives. The view that doctor knows
best is extremely strong in many countries. The process of getting users views is thus often far
more complicated than simply requesting input; it may involve an intensive training and
empowerment process before valuable feedback is received. It also often means going out to
people, rather than waiting for people to come forward with their views.
The consultation process should also include the statutory agencies which will be involved in
implementation of the mental health legislation. These include the police, prison officials and
magistrates working on the ground, and not only national or head office people who may not
be as closely in touch with everyday occurrences. Representatives of minority groups and other
vulnerable groups should also be involved in the consultation process.
Other important groups that should be involved in consultation are politicians, legislators and
other opinion makers. These groups can play a key role in the subsequent process of adoption
and implementation of legislation. They can help raise awareness about mental health issues,
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help in identifying potential difficulties in implementation at the community level, and give
suggestions for corrective action at the drafting stage. Engaging legislators may also pre-empt
possible disagreements that may arise later in the legislature, and allow drafters to make
necessary modifications at an early stage.
Examples of key stakeholders to invite for consultation
on proposed mental health legislation
Governmental agencies, including the ministries of health, finance, law, education,
employment (labour), social welfare, justice, the police and correctional services and
housing.
Academic institutions and professional bodies representing professionals such as
psychiatrists, psychologists, medical and psychiatric social workers, as well as psychiatric
nurses and other professionals who interact with the mental health system.
User group representatives and representatives of families and carers of persons with
mental disorders.
NGOs, including advocacy organizations representing the interests of people with mental
disorders and their families.
The private sector and NGOs providing care, treatment and rehabilitative services to
persons with mental disorders.
Politicians, legislators and opinion-makers.
Law enforcement agencies such as the police and prison officials.
Judicial authorities, including lawyers and legal representatives.
Religious authorities.
Organizations representing minorities and other vulnerable groups (such as women and
children).
Wider community groups, including civil rights groups, and associations such as employee
unions, staff welfare associations, employer groups, resident welfare associations, religious
groups and congregations of particular communities.
Mental health legislation that aims to promote the community care of people with mental
disorders cannot succeed without the active involvement of the wider community and those
affected. This part of the consultation can present some of the greatest challenges. Community
constituents are diffuse and widespread, and probably the most effective way of getting their
opinions is through a broad approach. This could involve addressing questions of mental health
in various kinds of civil rights groups, and in associations such as employee unions, staff welfare
associations, employer groups, resident welfare associations, religious groups and
congregations of particular communities. This method of obtaining community opinion may yield
more specific feedback than the more global method of a national public consultation. The
broad-based description of "public consultation" very often hides the fact that the consultation
is being confined to the educated, articulate middle class of a country, even though the
difficulties encountered due to mental disorders are predominant in poorer communities.
3.4 Process and procedure for consultation
There are various processes for consultation and a number of objectives can be achieved
through them. For example, written submissions from interested individuals and groups could be
invited, oral consultations with each of the above-mentioned constituencies could be held, and
different constituent groups could be brought together. Or there could be a combination of these
processes, such as a written submission followed by oral hearings, and focus groups could be
utilized or other creative mechanisms employed. Although usually the primary objective of
consultations is to hear what people or groups think and feel about the draft legislation, it can
be an opportunity for drafters to engage with stakeholders, and for different stakeholders to
engage with each other. Consultation can be used to develop consensus positions between
groups with different perspectives.
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Written submissions have the advantages of time and cost, and provide an accurate public
record of stakeholder views. Obtaining and processing written consultation is relatively less time-
consuming and less expensive than holding oral hearings. If people could be persuaded to
respond, a larger number of individuals and groups could be involved. The main disadvantages
of this process are the lack of opportunity for dialogue, and the fact that in many countries a
large percentage of the population is illiterate. In written representations, respondents present
their point of view, but other views are not necessarily presented. Thus the possibilities of
building a consensus and initiating a change of attitude are substantially reduced. It can also
exclude a large part of the constituency whose opinions are particularly important, such as poor
people and those from disadvantaged or minority backgrounds, as they may not be able to read
the proposed legislation or write a response.
Moreover, when written responses are received, special care has to be taken to ensure that the
more articulate or more elegantly written and presented responses are not taken more
seriously than the poorly crafted and poorly presented ones. Unless those receiving the
submissions are particularly aware of potential prejudices, they may consider a response
generated by a computer and printed to be more important than a handwritten one that is
difficult to decipher and written in inarticulate grammar. This could undermine certain goals of
the legislation, such as greater equity in services for the poor and the empowerment of people
with disability. In addition, written submissions can become an articulation of a particular
problem being faced by a respondent, while the larger policy issues that the consultation
attempts to raise get sidelined. While recognizing that it is time-consuming and expensive, the
optimum process with regard to written submissions would be to document and circulate the
opinions of all respondents and encourage them to engage with opinions opposed to their own.
Written consultation and a written response are most important in interactions of the various
constituencies discussed above with governmental authorities. A written opinion helps government
departments in taking positions and making commitments. This can significantly aid the process
of implementation of legislation. For example, consultation with the ministry of finance will help that
ministry identify the need for additional resources for implementing mental health legislation, and
formalize the commitment to provide these resources once the law is adopted. Oral consultation
has the advantage of initiating a dialogue between participants. This makes it a more useful
method for forming and changing opinions. This form of consultation also involves discussion
and debate, that enables a more in-depth exploration of the issues and enhances the chances
of achieving consensus. Sometimes stakeholders do not have all the information that helped in
the formulation of certain decisions taken in the drafting process, and oral discussions can allow
all relevant information to be shared. Oral consultations also provide an opportunity for the draft
legislation to be explained to illiterate people or to people who find the language in which the law
has been drafted difficult to understand, and to receive feedback from them on it.
The written and oral consultation methods have their advantages and disadvantages and hence
a mixture of both is ideal. The consultation process could commence by seeking opinions in
writing from interested individuals and groups. These opinions could be processed and those
individuals and groups whose responses necessitate further discussion and deliberation could
be invited for oral consultations. At the same time, to keep all the stakeholders involved in the
consultation process, a summary of the written submission on key issues, as well as the broad
thrust of the oral deliberations, could be shared in the media and made available on request.
Interested parties could again be given an opportunity to make submissions at this stage.
In most countries, mental health legislation is part of a process of overturning some of the most
deeply held prejudices of society. This can be done not only through the product (i.e. the
legislation produced), but also through the process. The consultation process on draft mental
health legislation provides an opportunity for prejudices to be recognized and confronted.
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Example: Consultation process in the Republic of Korea
The Department of Mental Health in the Ministry of Health and Welfare proposed amendments
to the Mental Health Act that would establish community mental health centres to promote
more community-based rehabilitation. The centres would undertake health prevention,
identification of new patients, counselling and treatment, as well as coordinate community
resources for improved mental health. Public hearings were held and opposition to the
proposed new law was voiced by some professionals who were operating rehabilitation facilities.
They felt that their roles would be undermined by the new community mental health centres.
However, users and family members supported the new role of the community mental health
centres. Following a full hearing and consideration of the conflicting viewpoints, it was decided
to proceed with legislation to establish community mental health centres.
(Personal communication, Dr Tae-Yeon Hwang, Director, Department of Psychiatric
Rehabilitation and Community Mental Health, WHO Collaborating Centre for Psychosocial
Rehabilitation and Community Mental health, Yongin Mental Hospital)
The consultation process will vary from country to country. There are, however, principles that
can guide countries in this endeavour. It should also be remembered that many countries have
a statutory stage for public comment, when additional comment can be made before the draft
is considered by the legislature (see subsection 4.1 below). Moreover, the legislature itself may
invite submissions in writing or orally.
Example: Drafting the law in Chile
Building consensus and political will
The Declaration of Caracas (1990) had a strong influence in Chile, setting up a process of
analysis and reflection about the mental health policies and services operating in the public
health system (a system that covered between 60% and 70% of the population and owned the
four psychiatric hospitals functioning in Chile). The country was in the process of returning to
democracy after 17 years of dictatorship. The population was sensitive about social issues and
human rights violations (e.g. murder, disappearances, prison, concentration camps, torture,
exile), although not specifically aware of the human rights of people with mental disorders.
The first national mental health policies and plan, which were formulated with the
participation of more that 100 mental health professionals and approved by the Minister of
Health in 1993, included considerations about the human rights of people utilizing psychiatric
services and established the need for improving laws to protect the rights of patients.
Drafting and consultation
In 1995, a task force was created by the Mental Health Unit of the Ministry of Health
comprising psychiatrists, nurses, psychologists, lawyers and other professionals, with the
objective of drafting a mental health law. Taking the social and economic realities into account,
the task force decided that protecting the rights of people in inpatient facilities would be
accorded priority. This was to be accomplished by changing regulations issued in 1927.
Changing these regulations required a decree signed by the President of Chile and the Minister
of Health, thus avoiding a longer process in Parliament (similar to the Power to Remove
Difficulties clause in India's Mental Health Act - see subsection 3.1). In 1996, a first draft was
sent for consultation to mental health professionals in all regions of the country, and to the
national organization of families and friends of people with mental disability (at that time there
were no user groups in Chile). A major step in the process was to convince many mental health
professionals that people with mental disorders could give informed consent for treatment most
of the time, and that the common practice in the country at that time, of family members giving
consent on behalf of their relative with a mental disorder, needed change.
(Personal communication, Dr Alberto Minoletti, Ministry of Health, Chile)
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The group, body or individual(s) mandated to draft legislation must ensure that the consultation
process is comprehensive, fair and open. To achieve this, they will require human and financial
resources. Some countries may make use of government departments (likely to be the
department of health) or those responsible for mental health policy development (if not in the
same department) to coordinate or assist with the process. In countries with a law commission
or similar structure, resources for consultation may already be allocated in the budgets of these
bodies for consultation purposes.
At the end of the consultation phase, it is useful for the drafting body to publish a report on
suggestions, objections and queries received during the consultation process, and the drafting
bodys response to them. Sections of the proposed legislation that have received substantive
objections need particular attention. As a good practice measure, it is advisable that the drafting
body give a detailed response to any substantive objections which are not acceptable to the
drafting body and the reasons why, in their opinion, modifications, alterations or changes to the
proposed legislation are not needed.
3.5 Language of legislation
Once the full consultation period is completed, the drafters will need to prepare the legislation
for submission to the structure that passes drafts into law. This process will usually require an
expert in legal drafting who is familiar with the style and norms of legislation in the country.
In addition, mental health laws should be written, as far as possible, in a manner that is easily
accessible to the many people who may need to read and understand it. In many legal traditions
of the past there was a belief that law was written for legal experts and that legal jargon and Latin
terms (no matter in which language the law was being drafted) should be utilized. This made it
very difficult for mental health professionals and the affected public to understand it. Mental
health law should thus be written as simply as possible (without oversimplifying important
provisions), and in language aimed at the general public rather than at legal experts.
Countries will generally have policies concerning which language(s) and the number of languages
in which legislation must be produced. Mental health laws will follow this national norm.
Drafting mental health legislation: Key issues
Most countries will have well-established structures and processes that should be followed
for developing legislation. Nonetheless, the mental health section in the ministry of health
can play a major facilitating role in the drafting process.
There must be significant and sufficient expertise brought into the drafting process to
ensure that useful and meaningful legislation is produced.
The scope intended to be covered by the legislation will influence the participants, but
generally professional and non-professional expertise should be included.
Once a draft has been completed it should undergo widespread review through consultation
with all the key stakeholders.
Forms of consultation can vary, and countries can employ different means for achieving
maximum input and discussion. Nonetheless, a time-bound process that includes the
following three stages is useful to follow:
1. Publication of the draft document in the print and electronic media of the country,
and inviting responses from the general public
2. Inviting written responses from all key stakeholders
3. Regional and national public meetings to analyse, discuss and negotiate the most
frequent and important objections or suggestions regarding the drafted legislation
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Adequate human and financial resources will be required if the consultation process is to be
comprehensive, fair and open.
At the end of the consultation process, it is useful for the drafting body to publish a report
on suggestions, objections and queries received during that process, and the
drafting body's response to them.
Mental health laws should be written, as far as possible, in a manner that is accessible to
the general public.
4. Adoption of legislation
Following revision of the new law on the basis of comments received during the consultation
process, the legislation is submitted to the body empowered to pass laws. This is potentially,
though not necessarily, a very time-consuming step, and a stage when proposed legislation can
get bogged down in technicalities. It requires persuading politicians and key members of the
executive branch of government and the legislature of the urgent need for new mental health
legislation, and therefore of the need to devote adequate legislative time to this process.
Although government support for a new law must (usually) have been obtained prior to the
formation of the drafting body, once a final document is ready to be sent to the legislature, other
political priorities may emerge that receive precedence, hence causing delays in the process,
since mental health is given low political priority in many countries.
4.1 Legislative process
The legislative process for adopting new laws varies in different countries, depending on their
legal traditions and political systems. What follows is a description of a general process and the
difficulties that may arise at different stages.
4.1.1 Responsibility for adopting legislation
Parliament or a sovereign, law-making body is ultimately responsible for adopting legislation in
most countries. In some countries the national parliament may be the sole legislative body, while
in other countries with a federal constitution, states or provinces within the country may be
authorized to make laws in addition to the national legislature. In federal States, legislative
powers in different fields are divided between the federation and its constituent states.
Depending on the locally determined jurisdiction, health laws, or laws that affect mental health,
this may be a national or regional responsibility. In some countries there may be national laws
that cover overarching principles and objectives, with state/district/provincial laws providing
more detail concerning different provisions and their application. In such cases, the latter laws
would have to follow key principles that are outlined in the national mental health law.
While for most countries a law must be passed in the legislature and promulgated before it can
be implemented, some countries constitutions make it possible to immediately implement
changes in laws through an administrative ordinance issued by the government. However, such
an order would subsequently need to be ratified by the parliament within a specified time period.
If not ratified, the order would lapse and the previous legislation would apply. Such a provision
may occasionally be useful in bringing about speedy implementation of mental health legislation
while the proposed legislation makes its way through the formal legislative process. This method
also has possible advantages in identifying difficulties with implementation of proposed
legislation, as it allows amendments to be made during the legislative process, based on
practical experience.
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4.1.2 Debate of draft legislation and its adoption
Many legislatures have subcommittees that carefully examine the legislation before it is
introduced into the main legislative body. These committees often wish to receive inputs from
various perspectives to assist them in making their decisions. They may hold public hearings,
request specific inputs or require clarification on different aspects of the law.
The debate and adoption stage of the legislative process can be long and labour-intensive.
During this stage, legislators may propose amendments to the proposed draft legislation. Those
in charge of piloting the legislation through the sovereign law-making body will have to actively
pursue and respond to proposed amendments. Ultimately, the decision to include or reject
proposed amendments is the prerogative of the sovereign body, but those responsible for
submitting the legislation will have to provide substantial guidance to lawmakers about the
effects of the proposed amendments, with recommendations for accepting or rejecting them.
After having considered the legislation and made amendments, the legislative body (which may
consist of more than one level or house) will then pass or reject the legislation.
4.1.3 Sanction, promulgation and publication of new legislation
The purpose of this stage of the legislative process is to make the adopted law publicly known,
and to announce it officially. As a rule, legislation cannot come into force without its official
publication, and before citizens and others have had time to become familiar with it. The terms
used here, such as sanction, publication and promulgation, may be different in different
countries, but the functions are fairly general and countries will need to identify their country
equivalence if different terminology is used.
Sanction of the adopted law is the prerogative of the head of State. Usually the head of State
signs the official text of the law and this act signifies sanction of the law (e.g. Germany, Lithuania,
Poland, Spain and the USA).
Promulgation means the official announcement of the adopted law by the issuing of a special
Act, for example, an order on official publication of the law. Usually, the government promulgates
acts of legislation.
Publication means printing of the text of the law in the official government publication. This is a
necessary stage before the adopted law can come into force. In many countries there are official
sources for full and authentic texts of the laws (e.g. Collection of Legislation of the Russian
Federation, Magazine of Laws of the Polish Republic, Gazette of the Estonian Republic,
Bundesgesetzblatt in Germany).
Usually, the constitution or other legal requirement stipulates a period of time after publication
before the new law can come into force (15 days in Italy, 20 days in Japan, and 10 days in the
Russian Federation). Sometimes, this date may be established in the text of the law itself. Such
preparation is vital for citizens and others to become familiar with the text as well as for making
organizational arrangements, if necessary, for the operationalization of the law. In some countries
the law only comes into operation on a date fixed by the head of State by proclamation in the
appropriate government publication. This has advantages, as it allows for a comprehensive
preparation process confident in the knowledge that no further changes or amendments will
take place.
Delays can occur at all stages, from sanction to promulgation and publication, and those
responsible for carrying the law forward will need to follow up with the relevant authorities to
ensure that legislation which is passed by the sovereign body actually enters the statute books
and thus becomes legally enforceable.
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4.2 Key actions during adoption of legislation
4.2.1 Mobilizing public opinion
Example: Adopting legislation in China
Difficulties in the process of adoption of legislation
The drafting process for the mental health law in China has lasted more than 16 years. The
current draft (13th version) has sections that protect civil rights, including employment and
education of persons with mental disorders, informed consent, confidentiality, voluntary and
involuntary hospitalization and treatment; rehabilitation and community-based mental health
services; and promotion of mental health and prevention of mental disorders.
However there are some difficulties with adopting the legislation. First, many stakeholders
consider mental health legislation as just care and treatment legislation, limited to provision
of institution-based services. Secondly, the professionals and the health system in general are
tending to resist change from a familiar system. Thirdly, many professionals fear that enacting
new legislation might increase the likelihood of their being blamed by patients and relatives for
the failures of the system. Hence professionals such as psychiatrists and nurses, who could
potentially be the most enthusiastic proponents of new legislation, remain indifferent to the
issue.
Efforts have been made to speed up the process of adoption of mental health legislation.
Activities have included more survey and research, identifying the countrys principal mental
disorders and barriers, studying components of legislation in countries socially and culturally
similar to China, and building a consensus for change.
(Personal communication, Dr Bin Xie, consultant, Ministry of Health, Beijing)
Mobilizing public opinion is crucially important for encouraging legislators to debate and pass
proposed mental health legislation. Obtaining the support of public opinion should be initiated
as early as possible ideally during the consultation process in the previous step. Consultation
provides an opportunity to raise public awareness about the topics included in the proposed
legislation, and should therefore be continued during this stage. Media strategies can be useful
for this purpose, and the professionals in charge of mental health at the ministry of health can
provide journalists with material for news, reports and interviews. Workshops and seminars for
key groups and organizations should be organized, where main components of the new
legislation can be explained and discussed.
Mental health advocacy groups can play an active role in these activities. The development of a
new law is a valuable opportunity to empower organizations in their fight against marginalization
and stigmatization of people with mental disorders. Thus a mental health law, which aims to
provide people with mental disorders with a normal life within the community, could well become
a vehicle to educate, influence social attitudes and facilitate social change.
4.2.2 Lobbying members of the executive branch of government and the legislature
Another important activity to stimulate the process of adopting mental health legislation is to
lobby members of the executive branch of government and the legislature. Members of the
legislature need to be informed of the deficiencies in the existing legislation for mental health or
of the negative implications and consequences of not having mental health legislation. They
need to understand the social needs that prompted the development of the proposed law, the
principal ideas on which the draft is based, the probability that the future law will solve existing
problems within the mental health field, and other issues pertinent to the legislation.
Those in charge of mental health at the ministry of health should conduct frequent meetings with
key members of these institutions as well as with politicians from the full spectrum of political
parties. It is helpful to periodically send them written documents containing information about
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mental health facts and best practices, and to ask their opinion about policy and legislative
initiatives. Lobbying is essential during the entire process of legislation and particularly in the
adoption phase to ensure that the proposed law is sent to the legislature and that it moves
forward through the different stages of analysis, discussion and promulgation.
Adopting mental health legislation: Key issues
Parliament or a sovereign law-making body has final responsibility for passing legislation.
In some countries, mental health laws are a state or provincial responsibility, while in
others there is a national mental health law. State laws must always follow the
principles of the national legislation where both apply.
In some countries, laws may be promulgated by an administrative ordinance, and this
would need to be ratified later by the parliament or law-making body.
Many legislatures have subcommittees that debate legislation and receive public input
before a bill is submitted to a full sitting of the legislature.
During debate on a law, amendments can be proposed and adopted. To do this effectively,
lawmakers must be fully briefed and informed of all implications of any changes.
Once a law is passed by the legislature other steps are required such as: sanction (head of
State signs the text); promulgation (official announcement of the adopted law); and
publication (printed in the text of the governments official legal statutes).
During the adoption of legislation it is important to mobilize public opinion and the media
for the purposes of both advocacy for the passing of the bill and to inform the public on the
issues, changes and opportunities afforded by the legislation.
Members of the executive and the legislature should be lobbied at all stages of the legislative
process, and particularly at the adoption stage, to ensure that the legislation, with its full
potential to improve peoples lives, is actually passed.
5. Implementing mental health legislation
The process leading up to implementation ideally starts from the point of conception of mental
health legislation. Many implementation difficulties can be identified, and corrective action taken,
during the drafting and consultation phase of the proposed legislation. The complexity of
modern mental health legislation adds to difficulties in its practical application. Often much
attention can be paid to the drafting and legislative process, while little preparatory work is done
with regard to implementation until after the legislation has been enacted.
The experience of many countries shows that law in books and law in practice sometimes
are rather different. Implementation problems tend to occur not only in countries without a
tradition of mental health law, but also in countries with a history of such law.
Once legislation has been passed through the legislative process, there is usually a short period
before enactment of the legislation. This is a critical time, as it allows for procedures to be put in
place, review bodies to be set up, training to take place, and to make sure that all those involved are
ready to implement the legislation once it is enacted. In countries which have regulations attached
to legislation, these regulations must also be finalized and signed before the legislation is enacted.
In some countries a decision may be made after the adoption of the law, to allow a period before
enforcement, which gives the authorities time to put in place the necessary infrastructure to
implement the law.
5.1 Importance and role of bodies responsible for implementation
As with the drafting of legislation, responsibility for overseeing implementation can take
numerous forms. Moreover, different functions of the legislation may be undertaken and
monitored by different groups. For example, if (as recommended in Chapter 2) a regulation and
oversight body has been established, it is likely to be compelled, through its given functions, to
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oversee certain legislative requirements. For example, regulatory or overseeing bodies could be
given the task of performing regular inspections of facilities to ensure patients rights are being
protected. They may also have to hear complaints and monitor intrusive and irreversible
treatments (see Chapter 2, section 13)
Through these responsibilities they will be able to assess whether the various legislative
provisions are being met. If these review bodies report directly to the responsible minister, the
latter can be kept informed of the extent and effectiveness of implementation. This should not,
however, preclude the government itself from setting norms, standards and indicators to
establish whether the provisions of the legislation are being met. These need to be monitored
and evaluated, and necessary steps taken if the legislation is not being implemented.
Example: Commission to oversee the law established in Portugal
In Portugal, the mental health legislation requires the setting up of a commission whose task is
to gather and analyse the information regarding the application of the law and propose
to the Government the measures deemed necessary for the implementation of the current Act.
This approach formalizes the monitoring of the legislation in the Act itself, and ensures that an
ongoing assessment and feedback process takes place. The composition of the commission
ensures that the legislative rights of users and families are considered through the legal
appointment to the commission of representatives of these groups.
(Personal communication, Dr J.M. Caldas de Almeida, Regional Adviser for WHO Region of the
Americas, 2003)
Whatever oversight agency is established, or whichever body is given this function, it should
have a set timetable, measurable targets and the necessary administrative and financial powers
to ensure effective and speedy implementation. The agency may require the mandate, authority
and adequate financial resources to, for example:
develop rules and procedures for implementation;
prepare standardized documentation instruments for recording and monitoring
implementation;
ensure a proper process of training of mental health professionals, introducing certification
procedures if necessary;
address human resource issues, for example by empowering non-medical mental health
professionals (nurses, nursing aides, psychologists, psychiatric social workers) to act as
specialists in certain situations, after adequate training and supervision; and
monitor implementation.
Visiting mental health facilities to monitor the implementation of the law constitutes a valuable
safeguard against unjustified involuntary detention and limitation of patients rights. Such visiting
boards can monitor conditions in mental health facilities, ensure that treatment and care
practices do not violate the rights of persons with mental disorders, and ensure that safeguards
contained in legislation are being implemented by the mental health facilities.
In addition, there must be speedy and effective implementation of complaints procedures as
provided in legislation. In particular, mental health facilities should make users and their families
aware of their rights as incorporated in mental health legislation, and of the means for using the
complaints procedures to obtain redress for their grievances, if any.
Despite these important provisions for oversight bodies, this does not guarantee protections for
people with mental disorders. Many countries have such bodies, but human rights abuses
persist. It should always be remembered that the law provides recourse to the courts, and that
it should be utilized if necessary. Legislation generally includes a section on penalties for
offences, and any citizen or organization has the right to bring cases of violation of the law to the
attention of prosecutors or other responsible officials within the criminal justice system (see
Chapter 2, section 18).
108
Example: The National Commission takes active steps to protect the rights of people with
mental disorders in Chile
As part of the overall health sector reform in Chile, a new charter on the rights of patients has
been introduced which has served to facilitate the implementation of measures to protect and
promote the rights of people with mental disorders. A National Commission for the Protection
of People with Mental Illness, with the participation of users and families, started work in
March 2001. A process of education of mental health workers about the rights of people with
mental disorders who are admitted to psychiatric facilities has been started in the country with
positive results. The common practice of psychosurgery for mental disorder associated with
violent behaviour has effectively been stopped in the country, violations of human rights in
some psychiatric facilities are being investigated, and people with mental disorder and their
families have been able to present their difficulties regarding access to treatment and
rehabilitation. As an example of the work of the Commission, prior to its establishment, every
year psychosurgery was performed, on average, on 40 patients for severe mental disorder
associated with aggressive behaviour. In the first two-and-a-half years after its establishment,
the Commission was requested to assess only 11 candidates for psychosurgery and all were
turned down, as other more appropriate interventions, with less risk to the patient, were
available.
(Personal communication, Dr A. Minoletti, Ministry of Health, Chile, 2002)
5.2 Dissemination and training
The general public as well as professionals, people with mental disorders, families of people with
mental disorders, and advocacy organizations working on their behalf are frequently ill informed
about the changes brought about by new legislation. In some instances, they may be well
informed of the changes, but remain unconvinced about the reasons for these changes and
hence do not act in accordance with the law. This is especially true when mental health
legislation requires significant changes to their customary practices related to mental health.
5.2.1 Public education and awareness
Cultural and social values, beliefs, attitudes and traditions of a particular society influence
attitudes about mental health, mental disorders and people who experience them. Stigma,
myths and misconceptions associated with mental disorders lead to discrimination and
limitations on human rights, and can represent obstacles to effective implementation of human-
rights-oriented legislation. Hence, changing public attitude constitutes an important component
in implementing mental health legislation.
Disseminating information about mental health, including information about the rights provided
in new legislation, can help to change public attitudes towards people with mental disorders.
Public awareness programmes need to highlight special provisions in legislation and provide
explanations for their inclusion, such as why sections regarding access to mental health care
and for protecting the human rights of persons with mental disorders have been included. The
media can play a useful role in this process. They can highlight the importance of respecting
human rights of persons with mental disorders and assist in educating the public about
advances in the treatment of mental disorders, especially the effectiveness of community-based
rehabilitation programmes.
5.2.2 Users, families and advocacy organizations
It is necessary to educate, inform and train users of mental health services, their family members
and advocacy organizations. It is critical for these individuals and/or groups to know what the
legislation says, and, specifically, to know their rights as provided for in the legislation. The
importance of involving NGOs of users and their families in activities through the whole process
of drafting, consultation and adoption of mental health legislation has been emphasized in this
109
chapter. Nonetheless, not all users or family members will have been part of these processes
and all will need to be informed even after the law has been passed. Organizations representing
users and family members as well as advocacy organizations can also be involved in awareness-
raising programmes. In countries where user and family organizations are not well established,
or have poor financial resources to disseminate information, mechanisms will need to be found
to disseminate the information as widely as possible (for further details, see Module on Advocacy
for Mental Health (WHO 2003b): http://www.who.int/mental_health/resources/policy_services/en/).
Example: Using advocacy services for effective implementation in Austria
A patients advocacy service with broad functions has been implemented in Austria. This
service assumes the legal representation in court proceedings of patients committed to
psychiatric hospitals. The service also provides counselling and information on patients' rights
for all patients as well as for their families and friends, and for interested people in general.
Two non-profit organizations run the service and are supervised by the Austrian Federal
Ministry of Justice. The organizations are responsible for training, guiding and supervising
patients advocates. The services of patients advocates are confidential and free of charge for
all patients. All involuntary patients are automatically assigned a patients advocate.
(Beermann, 2000)
5.2.3 Mental health, health and other professionals
Thorough knowledge of mental health legislation by mental health, health and other
professionals is extremely important for effective implementation. It is therefore necessary to
promote special training for health and mental health professionals and staff, law-enforcement
agencies (the police and judicial system), lawyers, social workers, teachers and human resource
administrators, among others. Joint forums for training, where professionals from health and
non-health disciplines are able to interact with each other, can create a better understanding of
mental health and mental disorders, the human rights of persons with mental disorders and the
common language used by all who interact with persons with mental disorders. Particularly
important for the training of health and mental health professionals and staff are issues regarding
rights to treatment and care, including the correct procedures for involuntary admission and
treatment.
As carefully as legislation may be drafted, there are invariably clauses which may be ambiguous,
or where the full intent and implications are not understood. Training may enable a full exploration
of each clause of the legislation and a thorough discussion of its meaning and implications.
Example: Training for implementation of mental health legislation in South Africa
In training for the implementation of the Mental Health Care Act 2002 in South Africa, short
clauses such as the least restrictive environment and in the best interests of the user
sparked many hours of debate regarding their implication in various settings and in different
scenarios. Participants expressed the view that without the training and without the trainer
specifically concentrating on the implications of these clauses, their importance would in all
likelihood have gone unnoticed, and the reasons why they were included would thus have been
lost in implementation.
(Personal correspondence with M. Freeman, Department of Health, South Africa, 2003)
110
5.2.4 Developing information and guidance materials
A guidebook (or books) can be developed to provide information that would be important to
different role players such as health practitioners, patients and family members. This guide could
give particular information about aspects of the legislation that may be difficult to understand.
It could provide detail or guidance about interpretation. Algorithms could also be developed that
clearly illustrate processes, such as involuntary admission and treatment, and indicate which
forms are needed at which stages of the process.
Example: British Columbia develops a "Guide to the Mental Health Act"
In British Columbia, a Guide to the Mental Health Act was developed to assist in implementing
new legislation. It provides an overview of the entire Act and has appendices for different
actors, such as how the community physician may certify an involuntary patient, how families
can get help accessing physicians and the courts, and criteria and procedures for the police.
(Personal correspondence with Dr John Gray, International Association of Gerontology, Canada)
Formal guidance to professionals, such as a code of practice, is another important way of
ensuring that legislation is properly implemented. Such guidance can re-emphasize the values
and principles underpinning the legislation, explain what the various aspects of the legislation
were meant to achieve, and include relevant case law.
Example: Code of Practice for England and Wales
In England and Wales, the mental health legislation required the Secretary of State for Health
to produce a code of practice. This guidance expands considerably on the basic text, and
affords professionals and the public the opportunity to see how the legislation should be
implemented (see www.doh.gov.uk/mhac1983.htm).
(Mental Health Act 1983, Code of Practice (1999), London, Stationary Office)
5.3 Financial and human resources
The speed and effectiveness of implementation is likely to depend on the availability of adequate
financial resources. Difficulties associated with drafting laws that cannot be implemented owing
to financial constraints have already been discussed (see Chapter 2, section 4). An added
resource problem is that new mental health legislation usually requires a shift from institutional to
community-based care, and this can require additional funding. While in the long run,
reallocation of funds from institutions to community-based facilities is feasible, in the short-term,
there may need to be both institutional and community-based facilities until community-based
facilities are fully developed enough to provide adequate services.
The proportion of a countrys budget or health budget that should be spent on mental health is
debatable and falls outside the scope of this Resource Book. It is important to emphasize,
however, that mental health is often given low priority vis--vis other health care issues, and that
for effective implementation of good mental health legislation a fairer allocation of resources for
mental health may be needed. Secondly, there is debate concerning potential conflict in the
distribution of resources in support of the different provisions contained within the mental health
law; for example, should resources be deployed for employing additional personnel in
community care, or for the establishment and running of a mental health review body?
Obstacles
Lack of coordinated action in the
implementation of mental health law
(absence of a centralized agency or
authority overseeing the process of
implementation)
Lack of knowledge, misunderstanding and
resistance by the general public, users and
carers to the changes brought about by the
new mental health legislation
Mental health, health and other
professionals are unaware, or resist the
provisions, of mental health legislation
Shortage of mental health human resources
to implement some of the mandates of the
law
Insufficient funding to develop the
mechanisms needed to implement the law
(e.g. advocacy, awareness-raising, training,
visiting boards, complaints procedures)
Facilitating factors
Appoint a coordinating agency, or ensure
that an agency is appointed (e.g. a mental
health review body) to oversee the
implementation process, by having this
included in the text of the law
Public education and awareness-raising
campaigns could highlight the provisions
and rationale of the new mental health law
Training programmes for mental health,
health and other professionals could
include explanations on the provisions of
mental health legislation
Guidance documents could inform people of
the details of the legislation
Mental health training should be provided
to general health professionals and staff
(for further details, see modules on
Organization of Services for Mental Health
(WHO, 2003c); and Human Resources and
Training in Mental Health (WHO, 2005):
(http://www.who.int/mental_health/resources
/policy_services/en/)
Additional funding for mental health as well
as protecting budgets should be allocated to
mental health and for implementation of
mental health legislation
111
Many aspects of progressive legislation will need adequate budgetary provision for
implementation activities. Funds are required for setting up and operationalizing the review body,
for training mental health professionals in the use of the legislation, and for making the necessary
changes to the mental health services as required by the legislation. Negotiation for this should
be done simultaneously with the process of drafting and adopting mental health legislation
(Issues regarding mental health financing can be found in the Mental Health Policy and Service
Guidance Package: Mental Health Financing (WHO, 2003d):
http://www.who.int/mental_health/resources/policy_services/en/).
Example: Obstacles to and facilitating factors for effective
implementation of mental health legislation
112
Human resource issues are of particular importance for the implementation of legislation in all
countries. Mental health professionals are key to the delivery of effective mental health care
within specialized mental health services, both in general health care and in the community.
Without sufficient numbers of professionals or adequate training, the primary objective of a
mental health law, to improve mental health care, will fail. In addition, investment needs to be
made in training all people who have a role to play in the implementation of the law (for example
the judiciary, the police force, people serving on a mental health review body) in order to ensure
that they are familiar with all aspects of the legislation, and with their own roles and
responsibilities in putting its provisions into practice.
Implementing mental health legislation: Key issues
Significant preparation is required to ensure the smooth introduction of new mental health
legislation. The period between the passing and the enactment of legislation can be a
particularly important time for organizing implementation procedures such as establishing
review boards, training people on the new legislation and preparing those who will
implement it.
Having standardized forms and other administrative processes in place facilitates the
transition.
Procedures must be set up to monitor the implementation of legislation. This may be done
by an independent body and/or by the implementing agency itself (e.g. the government).
Both the implementing and monitoring bodies should have timetables with measurable
targets, and the powers to carry out their functions.
Changing public attitudes and reducing stigma and discrimination is an important
component in ensuring the success of the legislation.
Users, families and advocacy groups need to have complete knowledge of the legislation in
order to maximize the benefits. Training these groups is an essential aspect of
implementation.
Mental health and other professionals also need to be trained to carry out the letter and the
intention of the legislation.
Financial and human resources to implement the legislation must be provided by the
relevant authorities to give substance and credibility to the legislation. Negotiation for the
provision of these resources should be conducted simultaneously with the processes of
drafting and adopting the legislation.
As we have seen, progressive legislation on mental health can represent an important means of
protecting the rights of people with mental disorders. In this Resource Book we have highlighted
key international and regional human rights standards that governments have the obligation to
respect, protect and fulfil. The Book also identifies what issues and provisions need to be
included in a progressive mental health law. Finally, it also examines best practice strategies for
the effective drafting, adoption and implementation of mental health law, highlighting difficulties
and barriers and ways in which these can be overcome.
It is every country's responsibility to act on this information and to generate the necessary
political commitment for successful initiation/development or reform of mental health law and its
implementation.
113
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A Rights Analysis Instrument for Use in Evaluating Mental Health Legislation. Prepared for the
Australian Health Ministers Advisory Council National Mental Health Working Group,
December 1996.
Mann J et al. (1994). Health and Human Rights. Journal of Health & Human Rights, 1:622.
Menzies R, Chun DE, Webster CD (1992). Risky Business. The classification of dangerous
people in the Canadian carceral enterprise. In: Visano LA, McCormic KRE, eds. Canadian
Penology: Advanced Perspectives and Applications. Toronto, Canadian Scholars Print.
Monahan J (1992). Mental disorder and violent behaviour: perceptions and evidence.
American Psychologist. 47, 3, 511-521.
Neugeboren J (1999). Transforming Madness: New Lives for People Living with Mental Illness.
New York, William Morrow and Company, Inc.
Nilstun T, Syse A (2000). The right to accept and the right to refuse. Acta Psychiatrica
Scandinavica, 101 (Suppl):3134.
Streeter PA (1998). Incarceration of the mentally ill: Treatment or warehousing? Michigan Bar
Journal, February issue:166170.
Swanson JW et al. (2000). Involuntary outpatient commitment and reduction in violent
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Strategies. Geneva, World Health Organization.
Annex 1. WHO Checklist on Mental Health Legislation
WORLD HEALTH ORGANIZATION
WHO Checklist on
Mental Health Legislation
This checklist has been developed by WHO staff, Dr Michelle Funk, Ms Natalie Drew, Dr
Margaret Grigg and Dr Benedetto Saraceno, in collaboration with Professor Melvyn Freeman,
WHO faculty member for legislation, with contributions from Dr Soumitra Pathare and Dr
Helen Watchirs, also WHO faculty for legislation. It is derived from the WHO Resource Book
on Mental Health Legislation, which has been prepared by the Mental Health Policy and
Service Development Team, Department of Mental Health and Substance Abuse, World
Health Organization.
119
120
Introduction and how to use this checklist
This checklist is a companion to the WHO Resource Book on Mental Health, Human Rights and
Legislation. Its objectives are to: a) assist countries in reviewing the comprehensiveness and
adequacy of existing mental health legislation; and b) help them in the process of drafting new
law. This checklist can help countries assess whether key components are included in
legislation, and ensure that the broad recommendations contained in the Resource Book are
carefully examined and considered.
A committee to work through the checklist is recommended. While an individual in, for example,
the ministry of health, may be able to complete the checklist, this has certain limitations. First,
no single person is likely to have all the relevant information that a well selected team would
have. Secondly, different individuals or representatives of different groups are likely to have
differing views on various issues. An evaluation committee that allows critical debate and the
development of a consensus is invaluable. Although countries should decide for themselves on
the composition of the committee, it is advisable to include a legal practitioner familiar with the
various national laws, the governmental mental health focal point, representatives of service user
and family groups, and representatives of mental health professionals, NGOs and different
government departments. It is recommended that the process be led and mediated by an
independent human rights and/or legal expert.
This checklist should generally not be utilized without thoroughly studying the Resource Book
itself. A number of important items included in the checklist are explained in the Resource Book,
and the rationale and different options for legislation are discussed. The Resource Book
emphasizes that countries should make their own decisions about various alternatives and ways
of drafting legislation as well as about a number of content issues. The format of this checklist
allows for such flexibility, and aims to encourage internal debate; it thus permits countries to
make decisions based on their own unique situations.
The checklist covers issues from a broad perspective, and many of the provisions will need to
be fleshed out or elaborated upon with respect to details and country specifications. Moreover,
not all provisions will be equally relevant to all countries due to different social, economic, cultural
and political factors. For example, not all countries will choose to have community treatment
orders; not all countries have provision for non-protesting patients; and in most countries,
sterilization of people with mental disorders will not be relevant. However, while each country in
its evaluative process may determine that a particular provision is not relevant, this determination
should be made part of the checklist exercise. All provisions in the checklist should be
considered and discussed carefully before it is decided that one (or more) of the provisions is not
relevant to a countrys particular context.
The Resource Book points out that countries may have laws that affect mental health in a single
statute or in numerous different statutory laws relating to areas such as general health,
employment, housing, discrimination and criminal justice. Moreover, some countries utilize
regulations, orders and other mechanisms to complement a statutory act. It is therefore
essential, when conducting this audit, to collect and collate all legal provisions pertaining to
mental health, and to make decisions based on comprehensive information.
The Resource Book makes it clear that drawing up or changing mental health legislation is a
process. Establishing what needs to be included in the legislation is an important element of
that process, and this checklist can be a useful aid to achieving this goal. Nonetheless, the
objective of drafting a law that can be implemented in a country must never be separated from
the content, and must always be a central consideration.
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127
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D
o

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r

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m
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r
s
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5
)

D
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e
s

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l
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n

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n
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m
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m
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r

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a
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r
s

a
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e

i
n
v
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d

i
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d
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f

m
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h
e
a
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h

p
o
l
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y
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l
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g
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l
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n
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p
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?
F
.

C
o
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e
,

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p
a
c
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y

a
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d

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u
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1
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a
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p
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a
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b
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c
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128
2
)

D
o
e
s

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h
e

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3
)

D
o
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s

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a
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d

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r
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a

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4
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a
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6
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p
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a

g
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7
)

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s

t
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p
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8
)

D
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c
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129
G
.

V
o
l
u
n
t
a
r
y

a
d
m
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n

a
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t
r
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t
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t
1
)

D
o
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s

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h
e

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p
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e

v
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)

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o
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s

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4
)

D
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v
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a
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a
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t
r
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a
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t

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m
p
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e
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s
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h
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e
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r
e
f
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f

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r
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a
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m
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5
)

D
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t
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e

l
a
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t
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t
e

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h
a
t

v
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a
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p
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t
s

s
h
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d

b
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f
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d

a
t

t
h
e

t
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m
e

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f

a
d
m
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s
s
i
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n

t
h
a
t

t
h
e
y

m
a
y

o
n
l
y

b
e
d
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n
i
e
d

t
h
e

r
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g
h
t

t
o

l
e
a
v
e

i
f

t
h
e
y

m
e
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t

t
h
e
c
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d
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n
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f
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n
v
o
l
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t
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r
y

c
a
r
e
?
a
)
b
)
c
)
a
)
b
)
c
)
a
)
b
)
c
)
a
)
b
)
c
)
a
)
b
)
c
)
130
H
.

N
o
n
-
p
r
o
t
e
s
t
i
n
g

p
a
t
i
e
n
t
s
1
)

D
o
e
s

t
h
e

l
a
w

m
a
k
e

p
r
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v
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s
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f
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n
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f

m
a
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m
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c
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s
i
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s

a
b
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t

a
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b
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w
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o

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f
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2
)

A
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t
h
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o
n
d
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t
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c
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3
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e
t
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.

I
n
v
o
l
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t
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y

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(
w
h
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a
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e

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r
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r
e
a
t
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t
)

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n
d

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n
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m
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w
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r
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a
d
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n

a
n
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r
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a
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r
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m
b
i
n
e
d
)
1
)

D
o
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s

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t
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t
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t

i
n
v
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a
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l
l
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i
f
:
a
)

t
h
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e

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v
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d
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n
c
e

o
f

m
e
n
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d
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r

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p
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c
i
f
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s
e
v
e
r
i
t
y
?

a
n
d
;
a
)
b
)
c
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a
)
b
)
c
)
a
)
b
)
c
)
a
)
b
)
c
)
131
b
)

t
h
e
r
e

i
s

s
e
r
i
o
u
s

l
i
k
e
l
i
h
o
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d

o
f

h
a
r
m

t
o

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f

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r

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t
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e
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a
n
d
/
o
r

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t
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l
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d
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e
r
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r
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t
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n

i
n

t
h
e

p
a
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t

s

c
o
n
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i
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n

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f

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a
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m
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n
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g
i
v
e
n
?
a
n
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;
c
)

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d
m
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s
s
i
o
n

i
s

f
o
r

a

t
h
e
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140
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154
Annex 2. Summary of the major provisions and
international instruments related to the
rights of people with mental disorders
Instruments safeguarding the human right
International Covenant on Economic,
Social and Cultural Rights (ICESCR)
International Covenant on Civil and
Political Rights (ICCPR)
UN Declaration of Human Rights
African (Banjul) Charter on Human and
Peoples Rights
Convention for the Protection of Human
Rights and Fundamental Freedoms
American Declaration of the Rights and
Duties of Man
American Convention on Human Rights
UN Principles for the Protection of
Persons with Mental Illness and for the
Improvement of Mental Health Care (MI
Principles)
Standard Rules on Equalization of
Opportunities for Persons with Disabilities
Declaration of Caracas
Recommendation of the Inter-American
Commission on Human Rights for the
Promotion and Protection of the Rights
of the Mentally Ill
International Covenant on Economic,
Social and Cultural Rights (ICESCR)
African (Banjul) Charter on Human and
Peoples Rights
UN Principles for the Protection of
Persons with Mental Illness and the
Improvement of Mental Health Care (MI
Principles)
Standard Rules on Equalization of
Opportunities for Persons with Disabilities
European Social Charter
Declaration of Caracas
International Convention on the Elimination
of All Forms of Racial Discrimination
Convention on the Elimination of All
Forms of Discrimination Against Women
Additional Protocol to the American
Convention on Human Rights in the Area
of Economic, Social and Cultural Rights
International Covenant on Economic,
Social and Cultural Rights (ICESCR)
International Covenant on Civil and
Political Rights (ICCPR)
155
Key human rights related to mental health
People with mental disorders are entitled to
the enjoyment and protection of their
fundamental human rights.
Right to the highest attainable standard of
health care including mental health
Protection against discrimination
Children with mental disabilities have the
right to enjoy a full and decent life
People with mental disorders should be
protected against torture, cruel, inhuman or
degrading treatment or punishment
Standards for involuntary care and treatment
Inter-American Convention on the
Elimination of all Forms of Discrimination
against Persons with Disabilities
UN Principles for the Protection of
Persons with Mental Illness and the
Improvement of Mental Health Care (MI
Principles)
Standard Rules on Equalization of
Opportunities for Persons with Disabilities
Recommendation of the Inter-American
Commission on Human Rights for the
Promotion and Protection of the Rights
of the Mentally Ill
Convention on the Elimination of All
Forms of Discrimination Against Women
UN Convention on the Rights of the Child
The Salamanca Statement and Framework
for Action on Special Needs Education
UN Principles for the Protection of
Persons with Mental Illness and the
Improvement of Mental Health Care (MI
Principles)
UN Convention for the Prevention of
Torture and Inhuman or Degrading
Treatment or Punishment
African (Banjul) Charter on Human and
Peoples Rights
UN Principles for the Protection of
Persons with Mental Illness and the
Improvement of Mental Health Care (MI
Principles)
Declaration of Caracas
International Covenant on Civil and
Political Rights (ICCPR)
European Convention for the Prevention
of Torture and Inhuman or Degrading
Treatment or Punishment
Recommendation of the Inter-American
Commission on Human Rights for the
Promotion and Protection of the Mentally Ill
UN Principles for the Protection of
Persons with Mental Illness and the
Improvement of Mental Health Care (MI
Principles
Council of Europe Recommendation
1235 on Psychiatry and Human Rights
Declaration of Caracas
World Psychiatric Association's Declaration
of Madrid
156
Annex 3. United Nations Principles for the Protection
of Persons with Mental Illness and the
Improvement of Mental Health Care
157
Adopted by General Assembly resolution 46/119 of 17 December 1991
Application
These Principles shall be applied without discrimination of any kind such as on grounds of
disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social
origin, legal or social status, age, property or birth.
Definitions
In these Principles:
"Counsel" means a legal or other qualified representative;
"Independent authority" means a competent and independent authority prescribed by domestic law;
"Mental health care" includes analysis and diagnosis of a person's mental condition, and
treatment, care and rehabilitation for a mental illness or suspected mental illness;
"Mental health facility'' means any establishment, or any unit of an establishment, which as its
primary function provides mental health care;
"Mental health practitioner'' means a medical doctor, clinical psychologist, nurse, social worker
or other appropriately trained and qualified person with specific skills relevant to mental health care;
"Patient" means a person receiving mental health care and includes all persons who are
admitted to a mental health facility;
"Personal representative" means a person charged by law with the duty of representing a
patient's interests in any specified respect or of exercising specified rights on the patient's
behalf, and includes the parent or legal guardian of a minor unless otherwise provided by
domestic law;
"The review body" means the body established in accordance with Principle 17 to review the
involuntary admission or retention of a patient in a mental health facility.
General limitation clause
The exercise of the rights set forth in these Principles may be subject only to such limitations as
are prescribed by law and are necessary to protect the health or safety of the person concerned
or of others, or otherwise to protect public safety, order, health or morals or the fundamental
rights and freedoms of others.
Principle 1
Fundamental freedoms and basic rights
1. All persons have the right to the best available mental health care, which shall be part of the
health and social care system.
2. All persons with a mental illness, or who are being treated as such persons, shall be treated
with humanity and respect for the inherent dignity of the human person.
3. All persons with a mental illness, or who are being treated as such persons, have the right to
protection from economic, sexual and other forms of exploitation, physical or other abuse and
degrading treatment.
4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any
distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment
of rights. Special measures solely to protect the rights, or secure the advancement, of persons
with mental illness shall not be deemed to be discriminatory. Discrimination does not include any
distinction, exclusion or preference undertaken in accordance with the provisions of these
Principles and necessary to protect the human rights of a person with a mental illness or of other
individuals.
5. Every person with a mental illness shall have the right to exercise all civil, political, economic,
social and cultural rights as recognized in the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Covenant on
158
Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights
of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and
any decision that, in consequence of such incapacity, a personal representative shall be
appointed, shall be made only after a fair hearing by an independent and impartial tribunal
established by domestic law. The person whose capacity is at issue shall be entitled to be
represented by a counsel. If the person whose capacity is at issue does not himself or herself
secure such representation, it shall be made available without payment by that person to the
extent that he or she does not have sufficient means to pay for it. The counsel shall not in the
same proceedings represent a mental health facility or its personnel and shall not also represent
a member of the family of the person whose capacity is at issue unless the tribunal is satisfied
that there is no conflict of interest. Decisions regarding capacity and the need for a personal
representative shall be reviewed at reasonable intervals prescribed by domestic law. The person
whose capacity is at issue, his or her personal representative, if any, and any other interested
person shall have the right to appeal to a higher court against any such decision.
7. Where a court or other competent tribunal finds that a person with mental illness is unable to
manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate
to that person's condition, to ensure the protection of his or her interest.
Principle 2
Protection of minors
Special care should be given within the purposes of these Principles and within the context of
domestic law relating to the protection of minors to protect the rights of minors, including, if
necessary, the appointment of a personal representative other than a family member.
Principle 3
Life in the community
Every person with a mental illness shall have the right to live and work, as far as possible, in the
community.
Principle 4
Determination of mental illness
1. A determination that a person has a mental illness shall be made in accordance with
internationally accepted medical standards.
2. A determination of mental illness shall never be made on the basis of political, economic or
social status, or membership of a cultural, racial or religious group, or any other reason not
directly relevant to mental health status.
3. Family or professional conflict, or non-conformity with moral, social, cultural or political values
or religious beliefs prevailing in a person's community, shall never be a determining factor in
diagnosing mental illness.
4. A background of past treatment or hospitalization as a patient shall not of itself justify any
present or future determination of mental illness.
5. No person or authority shall classify a person as having, or otherwise indicate that a person
has, a mental illness except for purposes directly relating to mental illness or the consequences
of mental illness.
Principle 5
Medical examination
No person shall be compelled to undergo medical examination with a view to determining
whether or not he or she has a mental illness except in accordance with a procedure authorized
by domestic law.
Principle 6
Confidentiality
The right of confidentiality of information concerning all persons to whom these Principles apply
shall be respected.
159
Principle 7
Role of community and culture
1. Every patient shall have the right to be treated and cared for, as far as possible, in the
community in which he or she lives.
2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever
possible, to be treated near his or her home or the home of his or her relatives or friends and
shall have the right to return to the community as soon as possible.
3. Every patient shall have the right to treatment suited to his or her cultural background.
Principle 8
Standards of care
1. Every patient shall have the right to receive such health and social care as is appropriate to
his or her health needs, and is entitled to care and treatment in accordance with the same
standards as other ill persons.
2. Every patient shall be protected from harm, including unjustified medication, abuse by other
patients, staff or others or other acts causing mental distress or physical discomfort.
Principle 9
Treatment
1. Every patient shall have the right to be treated in the least restrictive environment and with the
least restrictive or intrusive treatment appropriate to the patient's health needs and the need to
protect the physical safety of others.
2. The treatment and care of every patient shall be based on an individually prescribed plan,
discussed with the patient, reviewed regularly, revised as necessary and provided by qualified
professional staff.
3. Mental health care shall always be provided in accordance with applicable standards of ethics
for mental health practitioners, including internationally accepted standards such as the
Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health
knowledge and skills shall never be abused.
4. The treatment of every patient shall be directed towards preserving and enhancing personal
autonomy.
Principle 10
Medication
1. Medication shall meet the best health needs of the patient, shall be given to a patient only for
therapeutic or diagnostic purposes and shall never be administered as a punishment or for the
convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health
practitioners shall only administer medication of known or demonstrated efficacy.
2. All medication shall be prescribed by a mental health practitioner authorized by law and shall
be recorded in the patient's records.
Principle 11
Consent to treatment
1. No treatment shall be given to a patient without his or her informed consent, except as
provided for in paragraphs 6, 7, 8, 13 and 15 below.
2. Informed consent is consent obtained freely, without threats or improper inducements, after
appropriate disclosure to the patient of adequate and understandable information in a form and
language understood by the patient on:
(a) The diagnostic assessment;
(b) The purpose, method, likely duration and expected benefit of the proposed treatment;
(c) Alternative modes of treatment, including those less intrusive; and
(d) Possible pain or discomfort, risks and side-effects of the proposed treatment.
3. A patient may request the presence of a person or persons of the patient's choosing during
the procedure for granting consent.
4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7,
8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to
the patient.
160
5. A patient shall never be invited or induced to waive the right to informed consent. If the patient
should seek to do so, it shall be explained to the patient that the treatment cannot be given
without informed consent.
6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment
may be given to a patient without a patient's informed consent if the following conditions are
satisfied:
(a) The patient is, at the relevant time, held as an involuntary patient;
(b) An independent authority, having in its possession all relevant information, including the
information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks
the capacity to give or withhold informed consent to the proposed plan of treatment or, if
domestic legislation so provides, that, having regard to the patient's own safety or the safety of
others, the patient unreasonably withholds such consent; and
(c) The independent authority is satisfied that the proposed plan of treatment is in the best
interest of the patient's health needs.
7. Paragraph 6 above does not apply to a patient with a personal representative empowered by
law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14
and 15 below, treatment may be given to such a patient without his or her informed consent if
the personal representative, having been given the information described in paragraph 2 above,
consents on the patient's behalf.
8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to
any patient without the patient's informed consent if a qualified mental health practitioner
authorized by law determines that it is urgently necessary in order to prevent immediate or
imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond
the period that is strictly necessary for this purpose.
9. Where any treatment is authorized without the patient's informed consent, every effort shall
nevertheless be made to inform the patient about the nature of the treatment and any possible
alternatives and to involve the patient as far as practicable in the development of the treatment plan.
10. All treatment shall be immediately recorded in the patient's medical records, with an
indication of whether involuntary or voluntary.
11. Physical restraint or involuntary seclusion of a patient shall not be employed except in
accordance with the officially approved procedures of the mental health facility and only when it
is the only means available to prevent immediate or imminent harm to the patient or others. It
shall not be prolonged beyond the period which is strictly necessary for this purpose. All
instances of physical restraint or involuntary seclusion, the reasons for them and their nature and
extent shall be recorded in the patient's medical record. A patient who is restrained or secluded
shall be kept under humane conditions and be under the care and close and regular supervision
of qualified members of the staff. A personal representative, if any and if relevant, shall be given
prompt notice of any physical restraint or involuntary seclusion of the patient.
12. Sterilization shall never be carried out as a treatment for mental illness.
13. A major medical or surgical procedure may be carried out on a person with mental illness
only where it is permitted by domestic law, where it is considered that it would best serve the
health needs of the patient and where the patient gives informed consent, except that, where
the patient is unable to give informed consent, the procedure shall be authorized only after
independent review.
14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never
be carried out on a patient who is an involuntary patient in a mental health facility and, to the
extent that domestic law permits them to be carried out, they may be carried out on any other
patient only where the patient has given informed consent and an independent external body
has satisfied itself that there is genuine informed consent and that the treatment best serves the
health needs of the patient.
15. Clinical trials and experimental treatment shall never be carried out on any patient without
informed consent, except that a patient who is unable to give informed consent may be admitted
to a clinical trial or given experimental treatment, but only with the approval of a competent,
independent review body specifically constituted for this purpose.
16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her
personal representative, or any interested person, shall have the right to appeal to a judicial or
other independent authority concerning any treatment given to him or her.
161
Principle 12
Notice of rights
1. A patient in a mental health facility shall be informed as soon as possible after admission, in
a form and a language which the patient understands, of all his or her rights in accordance with
these Principles and under domestic law, which information shall include an explanation of those
rights and how to exercise them.
2. If and for so long as a patient is unable to understand such information, the rights of the
patient shall be communicated to the personal representative, if any and if appropriate, and to
the person or persons best able to represent the patient's interests and willing to do so.
3. A patient who has the necessary capacity has the right to nominate a person who should be
informed on his or her behalf, as well as a person to represent his or her interests to the
authorities of the facility.
Principle 13
Rights and conditions in mental health facilities
1. Every patient in a mental health facility shall, in particular, have the right to full respect for his
or her:
(a) Recognition everywhere as a person before the law;
(b) Privacy;
(c) Freedom of communication, which includes freedom to communicate with other persons in
the facility; freedom to send and receive uncensored private communications; freedom to
receive, in private, visits from a counsel or personal representative and, at all reasonable times,
from other visitors; and freedom of access to postal and telephone services and to newspapers,
radio and television;
(d) Freedom of religion or belief.
2. The environment and living conditions in mental health facilities shall be as close as possible
to those of the normal life of persons of similar age and in particular shall include:
(a) Facilities for recreational and leisure activities;
(b) Facilities for education;
(c) Facilities to purchase or receive items for daily living, recreation and communication;
(d) Facilities, and encouragement to use such facilities, for a patient's engagement in active
occupation suited to his or her social and cultural background, and for appropriate vocational
rehabilitation measures to promote reintegration in the community. These measures should
include vocational guidance, vocational training and placement services to enable patients to
secure or retain employment in the community.
3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible
with the needs of the patient and with the requirements of institutional administration, a patient
shall be able to choose the type of work he or she wishes to perform.
4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall
have the right to receive the same remuneration for any work which he or she does as would,
according to domestic law or custom, be paid for such work to a non-patient. Every such patient
shall, in any event, have the right to receive a fair share of any remuneration which is paid to the
mental health facility for his or her work.
Principle 14
Resources for mental health facilities
1. A mental health facility shall have access to the same level of resources as any other health
establishment, and in particular:
(a) Qualified medical and other appropriate professional staff in sufficient numbers and with
adequate space to provide each patient with privacy and a programme of appropriate and active
therapy;
(b) Diagnostic and therapeutic equipment for the patient;
(c) Appropriate professional care; and
(d) Adequate, regular and comprehensive treatment, including supplies of medication.
2. Every mental health facility shall be inspected by the competent authorities with sufficient
frequency to ensure that the conditions, treatment and care of patients comply with these Principles.
162
Principle 15
Admission principles
1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid
involuntary admission.
2. Access to a mental health facility shall be administered in the same way as access to any
other facility for any other illness.
3. Every patient not admitted involuntarily shall have the right to leave the mental health facility
at any time unless the criteria for his or her retention as an involuntary patient, as set forth in
Principle 16, apply, and he or she shall be informed of that right.
Principle 16
Involuntary admission
1. A person may (a) be admitted involuntarily to a mental health facility as a patient; or (b) having
already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental
health facility if, and only if, a qualified mental health practitioner authorized by law for that
purpose determines, in accordance with Principle 4, that person has a mental illness and
considers:
(a) That, because of that mental illness, there is a serious likelihood of immediate or imminent
harm to that person or to other persons; or
(b) That, in the case of a person whose mental illness is severe and whose judgement is
impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or
her condition or will prevent the giving of appropriate treatment that can only be given by
admission to a mental health facility in accordance with the principle of the least restrictive
alternative.
In the case referred to in subparagraph (b), a second such mental health practitioner,
independent of the first, should be consulted where possible. If such consultation takes place,
the involuntary admission or retention may not take place unless the second mental health
practitioner concurs.
2. Involuntary admission or retention shall initially be for a short period as specified by domestic
law for observation and preliminary treatment pending review of the admission or retention by
the review body. The grounds of the admission shall be communicated to the patient without
delay and the fact of the admission and the grounds for it shall also be communicated promptly
and in detail to the review body, to the patient's personal representative, if any, and, unless the
patient objects, to the patient's family.
3. A mental health facility may receive involuntarily admitted patients only if the facility has been
designated to do so by a competent authority prescribed by domestic law.
Principle 17
Review body
1. The review body shall be a judicial or other independent and impartial body established by
domestic law and functioning in accordance with procedures laid down by domestic law. It shall,
in formulating its decisions, have the assistance of one or more qualified and independent mental
health practitioners and take their advice into account.
2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to
admit or retain a person as an involuntary patient shall take place as soon as possible after that
decision and shall be conducted in accordance with simple and expeditious procedures as
specified by domestic law.
3. The review body shall periodically review the cases of involuntary patients at reasonable
intervals as specified by domestic law.
4. An involuntary patient may apply to the review body for release or voluntary status, at
reasonable intervals as specified by domestic law.
5. At each review, the review body shall consider whether the criteria for involuntary admission
set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged
as an involuntary patient.
6. If at any time the mental health practitioner responsible for the case is satisfied that the
conditions for the retention of a person as an involuntary patient are no longer satisfied, he or
she shall order the discharge of that person as such a patient.
163
7. A patient or his personal representative or any interested person shall have the right to appeal
to a higher court against a decision that the patient be admitted to, or be retained in, a mental
health facility.
Principle 18
Procedural safeguards
1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such,
including representation in any complaint procedure or appeal. If the patient does not secure
such services, a counsel shall be made available without payment by the patient to the extent
that the patient lacks sufficient means to pay.
2. The patient shall also be entitled to the assistance, if necessary, of the services of an
interpreter. Where such services are necessary and the patient does not secure them, they shall
be made available without payment by the patient to the extent that the patient lacks sufficient
means to pay.
3. The patient and the patient's counsel may request and produce at any hearing an
independent mental health report and any other reports and oral, written and other evidence that
are relevant and admissible.
4. Copies of the patient's records and any reports and documents to be submitted shall be given
to the patient and to the patient's counsel, except in special cases where it is determined that
a specific disclosure to the patient would cause serious harm to the patient's health or put at
risk the safety of others. As domestic law may provide, any document not given to the patient
should, when this can be done in confidence, be given to the patient's personal representative
and counsel. When any part of a document is withheld from a patient, the patient or the patient's
counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject
to judicial review.
5. The patient and the patient's personal representative and counsel shall be entitled to attend,
participate and be heard personally in any hearing.
6. If the patient or the patient's personal representative or counsel requests that a particular
person be present at a hearing, that person shall be admitted unless it is determined that the
person's presence could cause serious harm to the patient's health or put at risk the safety of
others.
7. Any decision whether the hearing or any part of it shall be in public or in private and may be
publicly reported shall give full consideration to the patient's own wishes, to the need to respect
the privacy of the patient and of other persons and to the need to prevent serious harm to the
patient's health or to avoid putting at risk the safety of others.
8. The decision arising out of the hearing and the reasons for it shall be expressed in writing.
Copies shall be given to the patient and his or her personal representative and counsel. In
deciding whether the decision shall be published in whole or in part, full consideration shall be
given to the patient's own wishes, to the need to respect his or her privacy and that of other
persons, to the public interest in the open administration of justice and to the need to prevent
serious harm to the patient's health or to avoid putting at risk the safety of others.
Principle 19
Access to information
1. A patient (which term in this Principle includes a former patient) shall be entitled to have
access to the information concerning the patient in his or her health and personal records
maintained by a mental health facility. This right may be subject to restrictions in order to prevent
serious harm to the patient's health and avoid putting at risk the safety of others. As domestic
law may provide, any such information not given to the patient should, when this can be done
in confidence, be given to the patient's personal representative and counsel. When any of the
information is withheld from a patient, the patient or the patient's counsel, if any, shall receive
notice of the withholding and the reasons for it and it shall be subject to judicial review.
2. Any written comments by the patient or the patient's personal representative or counsel shall,
on request, be inserted in the patient's file.
164
Principle 20
Criminal offenders
1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or
who are otherwise detained in the course of criminal proceedings or investigations against them,
and who are determined to have a mental illness or who it is believed may have such an illness.
2. All such persons should receive the best available mental health care as provided in Principle
1. These Principles shall apply to them to the fullest extent possible, with only such limited
modifications and exceptions as are necessary in the circumstances. No such modifications and
exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of
Principle 1.
3. Domestic law may authorize a court or other competent authority, acting on the basis of
competent and independent medical advice, to order that such persons be admitted to a mental
health facility.
4. Treatment of persons determined to have a mental illness shall in all circumstances be
consistent with Principle 11.
Principle 21
Complaints
Every patient and former patient shall have the right to make a complaint through procedures as
specified by domestic law.
Principle 22
Monitoring and remedies
States shall ensure that appropriate mechanisms are in force to promote compliance with these
Principles, for the inspection of mental health facilities, for the submission, investigation and
resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings
for professional misconduct or violation of the rights of a patient.
Principle 23
Implementation
1. States should implement these Principles through appropriate legislative, judicial,
administrative, educational and other measures, which they shall review periodically.
2. States shall make these Principles widely known by appropriate and active means.
Principle 24
Scope of principles relating to mental health facilities
These Principles apply to all persons who are admitted to a mental health facility.
Principle 25
Saving of existing rights
There shall be no restriction upon or derogation from any existing rights of patients, including
rights recognized in applicable international or domestic law, on the pretext that these Principles
do not recognize such rights or that they recognize them to a lesser extent.
For further information and guidance on the MI Principles, see also Guidelines for the
Promotion of Human Rights of Persons with Mental Disorder. Geneva, World Health
Organization, 1996; available at:
http://whqlibdoc.who.int/hq/1995/WHO_MNH_MND_95.4.pdf
Annex 4. Extract from the PAHO/WHO
Declaration of Caracas
165
The legislators, associations, health authorities, mental health professionals and jurists
assembled at the Regional Conference on the Restructuring of Psychiatric Care in Latin America
within the Local Health Systems Model,
DECLARE
1. That the restructuring of psychiatric care on the basis of Primary Health Care and within the
framework of the Local Health Systems Model will promote alternative service models that
are community-based and integrated into social and health care networks.
2. That the restructuring of psychiatric care in the Region implies a critical review of the
dominant and centralizing role played by the mental hospital in mental health service delivery.
3. That the resources, care and treatment that are made available must:
a) safeguard personal dignity and human and civil rights;
b) be based on criteria that are rational and technically appropriate; and
c) strive to maintain patients in their communities.
4. That national legislation must be redrafted if necessary so that:
a) the human and civil rights of mental patients are safeguarded; and
b) that the organization of community mental health services guarantees the protection
of these rights.
5. That training in mental health and psychiatry should use a service model that is based on the
community health center and encourages psychiatric admission in general hospitals, in
accordance with the principles that underlie the restructuring movement.
6. That the organizations, associations, and other participants in this Conference hereby
undertake to advocate and develop programs at the country level that will promote the
desired restructuring, and at the same time commit themselves to monitoring and defending
the human rights of mental patients in accordance with the national legislation and
international agreements.
To this end, they call upon the Ministries of Health and Justice, the Parliaments, Social
Security and other care-providing institutions, professional organizations, consumer
associations, universities and other training facilities and the media to support the
restructuring of psychiatric care, thus assuring this successful development for the benefit of
the population in the Region.
Extract from the text of the Declaration of Caracas adopted on 14 November 1990 by the
Regional Conference on the Restructuring of Psychiatric Care in Latin America, convened in
Caracas, Venezuela, by the Pan American Health Organization/WHO Regional Office for the
Americas. International Digest of Health Legislation, 1991, 42(2):336338.
166
Madrid Declaration on Ethical Standards for Psychiatric Practice
Approved by the General Assembly on August 25, 1996 and amended by the General Assembly
in Yokohama, Japan, in August 2002
In 1977, the World Psychiatric Association approved the Declaration of Hawaii, setting out
ethical guidelines for the practice of psychiatry. The Declaration was updated in Vienna in 1983.
To reflect the impact of changing social attitudes and new medical developments on the
psychiatric profession, the Word Psychiatric Association has once again examined and revised
some of these ethical standards.
Medicine is both a healing art and a science. The dynamics of this combination are best reflected
in psychiatry, the branch of medicine that specializes in the care and protection of those who are
ill and infirm because of a mental disorder or impairment. Although there may be cultural, social,
and national differences, the need for ethical conduct and continual review of ethical standards
is universal.
As practitioners of medicine, psychiatrists must be aware of the ethical implications of being a
physician and of the specific ethical demands of the speciality of psychiatry. As members of
society, psychiatrists must advocate for fair and equal treatment of the mentally ill, for social
justice and equity for all.
Ethical behavior is based on the psychiatrist's individual sense of responsibility towards the
patient and their judgement in determining what is correct and appropriate conduct. External
standards and influences such as professional codes of conduct, the study of ethics, or the rule
of law by themselves will not guarantee the ethical practice of medicine.
Psychiatrists should at all times, keep in mind the boundaries of the psychiatrist-patient
relationship, and be guided primarily by the respect for patients and concern for their welfare and
integrity.
It is in this spirit that the World Psychiatric Association approved at the General Assembly on
August 25th, 1996, the following ethical standards that should govern the conduct of
psychiatrists worldwide.
1. Psychiatry is a medical discipline concerned with the provision of the best treatment for
mental disorders, with the rehabilitation of individuals suffering from mental illness and with the
promotion of mental health. Psychiatrists serve patients by providing the best therapy available
consistent with accepted scientific knowledge and ethical principles. Psychiatrists should devise
therapeutic interventions that are least restrictive to the freedom of the patient and seek advice
in areas of their work about which they do not have primary expertise. While doing so,
psychiatrists should be aware of and concerned with the equitable allocation of health
resources.
2. It is the duty of psychiatrists to keep abreast [of ] scientific developments of the specialty and
to convey updated knowledge to others. Psychiatrists trained in research should seek to
advance the scientific frontiers of psychiatry.
3. The patient should be accepted as a partner by right in the therapeutic process. The
therapist-patient relationship must be based on mutual trust and respect to allow the patient
make free and informed decisions. It is the duty of psychiatrists to provide the patient with
Annex 5. Extract from the Declaration of Madrid
of the World Psychiatric Association
167
relevant information so as to empower the patient to come to a rational decision according to
personal values and preferences.
4. When the patient is incapacitated and/or unable to exercise proper judgement because of a
mental disorder, the psychiatrists should consult with the family and, if appropriate, seek legal
counsel, to safeguard the human dignity and the legal rights of the patient. Not treatment should
be provided against the patients will, unless withholding treatment would endanger the life of the
patient and/or those who surround him or her. Treatment must always be in the best interest of
the patient.
5. When psychiatrists are requested to assess a person, it is their duty first to inform and advise
the person being assessed about the purpose of the intervention, the use of the findings, and
the possible repercussions of the assessment. This is particularly important when the
psychiatrists are involved in third party situations.
6. Information obtained in the therapeutic relationship should be kept in confidence and used,
only and exclusively, for the purpose of improving the mental health of the patient. Psychiatrists
are prohibited from making use of such information for personal reasons, or financial or
academic benefits. Breach of confidentiality may only be appropriate when serious physical or
mental harm to the patient or to the third person would ensue if confidentiality were maintained;
as in the case of child abuse, in these circumstances, psychiatrist should whenever possible,
first advise the patient about the action to be taken.
7. Research that is not conducted in accordance with the canons of science is unethical.
Research activities should be approved by an appropriately constituted ethics committee.
Psychiatrists should follow national and international rules for the conduct of research. Only
individuals properly trained for research should undertake or direct it. Because psychiatric
patients are particularly vulnerable research subjects, extra caution should be taken to safeguard
their autonomy as well as their mental and physical integrity. Ethical standards should also be
applied in the selection of population groups, in all types of research including epidemiological
and sociological studies and in collaborative research involving other disciplines or several
investigating centers.
GUIDELINES CONCERNING SPECIFIC SITUATIONS
The World Psychiatric Association Ethics Committee recognizes the need to develop a number
of specific guidelines on a number of specific situations. The first five were approved by the
General Assembly in Madrid, Spain, on August 25, 1996 and the last three by the General
Assembly in Hamburg, Germany, on August 8, 1999.
1. Euthanasia: A physician's duty, first and foremost, is the promotion of health, the reduction
of suffering, and the protection of life. The psychiatrist, among whose patients are some who are
severely incapacitated and incompetent to reach an informal decision, should be particularly
careful of actions that could lead to the death of those who cannot protect themselves because
of their disability. The psychiatrist should be aware that the views of a patient may be distorted
by mental illness such as depression. In such situations, the psychiatrist's role is to treat the
illness.
2. Torture: Psychiatrists shall not take part in any process of mental or physical torture, even
when authorities attempt to force their involvement in such acts.
3. Death Penalty: Under no circumstances should psychiatrists participate in legally authorized
executions nor participate in assessments of competency to be executed.
4. Selection of Sex: Under no circumstances should a psychiatrist participate in decisions to
terminate pregnancy for the purpose of sex selection.
168
5. Organ Transplantation: The role of the psychiatrist is to clarify the issues surrounding organ
donations and to advise on religious, cultural, social and family factors to ensure that informed
and proper decisions be made by all concerned. The psychiatrists should not act as a proxy
decision maker for patients nor use psychotherapeutic skills to influence the decision of a patient
in these matters. Psychiatrists should seek to protect their patients and help them exercise self-
determination to the fullest extent possible in situation of organ transplantation.
6. Psychiatrists Addressing the Media:
The media has a key role in shaping the perceptions and attitudes of the community. In all
contacts with the media psychiatrists shall ensure that people with mental illness are presented
in a manner which preserves their dignity and pride, and which reduces stigma and
discrimination against them. An important role of psychiatrists is to advocate for those people
who suffer from mental disorders. As the public perception of psychiatrists and psychiatry
reflects on patients, psychiatrists shall ensure that in their contacts with the media they represent
the profession of psychiatry with dignity. Psychiatrists shall not make announcements to the
media about presumed psychopathology on any individuals. In presenting research findings to
the media, psychiatrists shall ensure the scientific integrity of the information given and be
mindful of the potential impact of their statements on the public perception of mental illness and
on the welfare of people with mental disorders.
7. Psychiatrists and Discrimination on Ethnic or Cultural Grounds
Discrimination by psychiatrists on the basis of ethnicity or culture, whether directly or by aiding
others, is unethical. Psychiatrists shall never be involved or endorse, directly or indirectly, any
activity related to ethnic cleansing.
8. Psychiatrists and Genetic Research and Counselling
Research on the genetic basis of mental disorders is rapidly increasing and more people
suffering from mental illness are participating in such research. Psychiatrists involved in genetic
research or counselling shall be mindful of the fact that the implication of genetic information [is]
not limited to the individual from whom it was obtained, and that its disclosure can have negative
and disruptive effects on the families and communities of the individuals concerned.
Psychiatrists shall therefore ensure that:
- People and families who participate in genetic research do so with a fully informed consent;
- Any genetic information in their possession is adequately protected against unauthorized
access, misinterpretation or misuse,
- Care is taken in communication with patients and families to make clear that current genetic
knowledge is incomplete and may be altered by future findings.
Psychiatrists shall only refer people to facilities for diagnostic genetic testing if that facility has:
- Demonstrated satisfactory quality assurance procedures for such testing;
- Adequate and easily accessible resources for genetic counselling. Genetic counselling with
regard to family planning or abortion shall be respectful of the patients' value system, while
providing sufficient medical and psychiatric information to aid patients make decisions they
consider best for them.
169
Your Rights as a Client or Patient of the Connecticut Department
of Mental Health & Addiction Services (USA)
You are entitled to be treated in a humane and dignified way at all times, and with full respect to:
Personal Dignity Right to Privacy Right to Personal Property Civil Rights
You have the right to freedom from physical or mental abuse or harm;
You have the right to a written treatment plan that is developed with your input and suited to
your own personal needs, goals and aspirations;
You should be informed of your rights by the institution, agency or program.
In addition, a list of your rights must be posted on each ward of a hospital.
Other rights you have include:
Humane and dignified treatment: You have the right to receive humane and dignified treatment
at all times and with full respect to your personal dignity and privacy. A specialized treatment plan
shall be developed in accordance with your needs. Any treatment plan shall include, but not be
limited to, reasonable notice of discharge, your active participation in and planning for
appropriate aftercare. (See CGS 17a-542)
Personal Dignity: While in an inpatient facility, you have the right to wear your own clothing, to
maintain your own personal belongings (given reasonable space limitations) and to be able to
have access to and spend your own money for personal purchases.* Except for patients in
Whiting Forensic Division, you have the right to be present during any search of your personal
belongings. Any exception to these rights must be explained in writing and made a part of your
clinical record. (See CGS 17a-548)
Privacy & Confidentiality: You have the right to privacy & confidentiality. Records that would
identify your person, manner of treatment or your diagnosis cannot be given to any other person
or agency without your written consent. All records maintained by the courts [as they relate to a
recipients treatment] shall be sealed and available only to respondent or counsel.* No person,
hospital, treatment facility nor DMHAS may disclose or permit the disclosure of the identity,
diagnosis, prognosis or treatment of any service recipient that would constitute a violation of
state or federal statutes concerning confidentiality.*
(See CGS 17a-500, 17a-688, 52-146f and 42 CFR part 2)
Physicians Emergency Certificate & Commitment: You, your advocate or counsel, can find out
more about what Commitment procedures apply by reviewing the appropriate statutes. All
persons admitted through a Physicians Emergency Certificate have the right, upon request, to
a Probable Cause hearing within 3 business days from admission. All voluntarily admitted
patients shall be informed, upon admission, of their ability to leave after three days notice. Any
voluntarily confined patient shall not be denied his or her request to leave within three days notice
in writing unless an application for commitment has been filed in a court of competent
jurisdiction. Different statutes apply depending on your placement in addictions treatment or for
a psychiatric disorder. (See CGS 17a-495 et seq.; 17a-502; 17a-506; 17a-682 to 17a-685, 54-56d)
Visiting and Communication Rights: You may receive visitors during scheduled visiting hours.
You have the right to visit with and may have private conversations with clergy, attorneys or
paralegals of your choice at any reasonable hour. Facilities may reasonably maintain rules
regulating visitors. Mail or other communications to or from a service recipient in any treatment
facility may not be intercepted, read or censored.* Any exceptions to rights regarding
communications must be explained in writing, signed by the head of the facility (or designee) and
made a part of your clinical record. (See CGS 17a-546, 17a-547)
Access to Your Medical Record: You or your attorney may have the right, upon written request,
to inspect your hospital records. Unless your request is made in connection with litigation, a
facility may refuse to disclose any portion of the record which the mental health facility has
determined would create a substantial risk that you would inflict a life threatening injury to self or
others, experience a severe deterioration in mental state,* or would constitute an invasion of
privacy of another. (See CGS 17a-548, 52-146f)
Annex 6. Example: Rights of a Patient, as specified
in Connecticut, USA
170
Restraint & Seclusion: If conditions are such that you are restrained or placed in seclusion, you
must be treated in a humane and dignified manner. The use of involuntary seclusion or
mechanical restraints is allowed only when there is an imminent danger to yourself or others.
Documentation of reasons for these interventions must be placed in your clinical records within
24 hours. Medications cannot be used as a substitute for a more appropriate treatment.
(See CGS 17a-544)
Remedies of Aggrieved Persons: If you have been aggrieved by a violation of sections 17a-540
to 17a-549 you may petition the Superior Court within whose jurisdiction you reside for
appropriate relief. (See CGS 17a-550)
Disclosure of Your Rights: A copy of your rights shall be prominently posted in each ward where
mental health services are provided. (See CGS 17a-548)
Medication, Treatment, Informed Consent & Surgical Procedures:
You, your advocate or counsel, can find out more about what procedures apply by reviewing the
appropriate statutes (see CGS 17a-543a-j). If you have been hospitalized under any sections of
17a-540 to 550, you shall receive a physical examination within 5 days of admission and at least
once every year thereafter. Reports of such exams must be entered into your clinical record. (See
CGS 17a-545). No medical or surgical procedures, no psychosurgery or shock therapy shall be
administered to any patient without such patients written informed consent, except as provided
by statute.* A facility may establish a procedure that governs involuntary medication treatments
but any such decision shall be made by someone not employed by the treating facility and not
until the patients advocate has had reasonable opportunity to discuss such with the facility.* If
a facility had determined to administer involuntary medication pursuant to statute, the patient
may petition the Probate Court to hold a hearing to decide whether to allow this intervention.
Notwithstanding the provisions of this section (17a-540 to 550) if obtaining consent would cause
a medically harmful delay, emergency treatment may be provided without consent.
(See CGS 17a-543a-f)
Denial of Employment, Housing, Etceteras: You cannot be denied employment, housing, civil
service rank any license or permit (including a professional license) or any other civil or legal right,
solely because of a present or past history of a mental disorder, unless otherwise provided.*
(See CGS 17a-549)
Filing of Grievances: Recipients of DMHAS facilities or programs have the right to file a
grievance if any staff or facility has: 1) violated a right provided by statute, regulation or policy; 2)
if you have been treated in an arbitrary or unreasonable manner; 3) denied services authorized
by a treatment plan due to negligence, discrimination ...or other improper reasons; 4) engaged
in coercion to improperly limit your treatment choices; 5) unreasonably failed to intervene when
your rights have been jeopardized in a setting controlled by the facility or DMHAS; or 6) failed to
treat you in a humane or dignified manner. (See CGS 17a-451-t[1-6])
Other Rights may be guaranteed by state or federal statute, regulation or policies which have
not been identified in this list. You are encouraged to seek counsel to learn of or to better
understand these laws and policies.
Many of the rights of service recipients in facilities in Connecticut are specified in sections
17a-540 through 17a-550 of the Connecticut General Statutes. There may also be other
rights provided by other state and federal statutes as well as by case law, but the ones
identified in 17a-540 through 17a-550 are specifically protected and must be adhered to by
inpatient or outpatient facilities in Connecticut. These statutes apply to both voluntary and
involuntary service recipients, unless otherwise provided.
In general, both public and private facilities are prohibited from depriving you of any of your
personal, property or civil rights. These include the right to vote, to hold or convey property
and contract, except in accordance with due process of law and unless you have been
declared incapable pursuant to sections 45a-644 to 45a-662. Any finding of incapability
should specifically state which civil or personal rights you are incapable of exercising.
For more information about your rights as a recipient of substance abuse
or mental health services in Connecticut, contact 1-800-446-7348.
*There may be exceptions and limitations to some rights. Your rights are detailed in the Connecticut General Statutes,
sections 17a-450 et seq.; 17a-540 et seq.; 17a-680 et seq.; 52-146d-j; 54-56d; in Federal regulation 42 CFR part 2, the
Rehabilitation Act, the Americans with Disabilities Act; in the Patients Self-Determination Act, in Section 1983 and in other
parts of state and federal law.
(http://www.dmhas.state.ct.us/documents/ptrights.pdf)
171
Extract of Table of contents and Rights of Recipients Summary
Table of Contents
Non-Discrimination Notice
Basis Statement
Introduction
A. RULES OF GENERAL APPLICABILITY
I. Statement of Intent
II. Definitions
III. Basic Rights
IV. Least Restrictive Appropriate Treatment
V. Notification of Rights
VI. Assistance in the Protection of Rights
VII. Right to Due Process with regard to Grievances
VIII. Complaints
IX. Confidentiality and Access to Records
X. Fair Compensation for Work
XI. Protection During Experimentation and Research
B. RIGHTS IN INPATIENT AND RESIDENTIAL SETTINGS
I. Statement of Intent
II. Privacy and Humane Treatment Environment
III. Individualized Treatment and Discharge Plan
IV. Individualized Treatment or Service Plan in Residential Settings in Residential Settings
V. Informed Consent to Treatment
VI. Basic Rights
VII. Freedom From Unnecessary Seclusion and Restraint in Residential Settings
C. RIGHTS IN OUTPATIENT SETTINGS
I. Statement of Intent
II. Individualized Support Planning Process
III. Individualized Treatment or Service Plan
IV. Informed Consent to Treatment
Summary in English, French, Russian, Serbo-Croatian, Somali, Spanish, Vietnamese
Annex 7. Example: Rights of Recipients of Mental
Health Services, State of Maine Department
of Behavioral and Developmental Services, USA
172
Rights of Recipients Summary in English
DEPARTMENT OF BEHAVIORAL AND DEVELOPMENTAL SERVICES
RIGHTS OF RECIPIENTS OF MENTAL HEALTH SERVICES
This is a summary of your rights as a recipient of services under the Rights of Recipients of
Mental Health Services. You have a right to obtain a full copy of the Rights from this agency
or from the Department of Behavioral and Developmental Services, 40 State House Station,
Augusta, Maine 04333, Tel: 287-4200 (V), 287-2000 (TTY). If you are deaf or do not
understand English, a qualified interpreter will be made available at no charge so that you can
understand your rights and understand your treatment.
1. Basic rights. You have the same civil, human, and legal rights which all Maine residents
have. You have a right to be treated with courtesy and full respect for your individuality and dignity.
2. Confidentiality and Access to Records. No one else can see your record unless you
specifically authorize them to see it, except in instances described in the complete Rights
book. You may add written comments to your record to clarify information you believe is
inaccurate or incomplete. You have the right to review your record at any reasonable time.
3. Individualized Treatment or Service Plan. You have the right to an individualized plan,
developed by you and your worker, based upon your needs and goals. The plan must be in
writing and you have the right to a copy of it. The plan needs to specifically detail what
everyone will do, the time frames in which the tasks and goals will be accomplished and how
success will be determined. The plan must be based upon your actual needs and, if a needed
service is not available, detail how your need will be met.
4. Informed Consent. No services or treatment can be provided to you against your will,
unless you have a guardian who has consented, there is an emergency, or a special hearing
about your treatment has occurred. You have the right to be informed (or if under
guardianship, the guardian has the right to be informed) of the possible risks and anticipated
benefits of all services and treatment, including medications, in a manner which you
understand. If you have any questions, you may ask your worker or anyone else you choose
before making decisions about treatment or services.
5. Assistance in the Protection of Rights. You have the right to appoint a representative of
your choice to help you understand your rights, protect your rights or help you work out a
treatment or service plan. If you wish a representative, you must designate this person in
writing. You can have access to the representative at any time you wish and you can change
or cancel the designation at any time.
6. Freedom From Seclusion and Restraint. You cannot be secluded or restrained in an
outpatient setting.
7. Right to File a Grievance. You have the right to bring a grievance to challenge any possible
violation of your rights or any questionable practices. You have the right to have your
grievance answered in writing, with reasons for the decisions. You may appeal any decision
to the Division of Mental Health. You may not be punished in any way for filing a grievance.
For help with grievances, you may contact the Office of Advocacy, 60 State House Station,
Augusta, Maine 04333, Tel: 287-4228 (V), 287-1798 (TTY) or Disability Rights Center, P.O.
Box 2007, Augusta, Maine 04338-2007, Tel: 1-800-452-1948 (V/TTY).
I have received a copy of the summary of the Rights of Recipients of Mental Health Services
Date Client Signature Date Witness Signature
(To view full notice of rights for recipients of mental health services of the State of Maine, please
see the following website: http://www.state.me.us/bds/Licensing/RightsRecipients/Index.html)
173
SCHEDULE 1
Regulation 5(1)
FORM OF INVOLUNTARY ADMISSION REQUEST
Mental Health Act 1986
(Section 9)
Mental Health Regulations 1998
PART A
REQUEST FOR ADMISSION OF A PERSON AS AN INVOLUNTARY PATIENT TO AN
APPROVED MENTAL HEALTH SERVICE
TO THE ADMITTING REGISTERED MEDICAL PRACTITIONER
Please admit
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS) of person to be admitted
of
(ADDRESS OF PERSON TO BE ADMITTED)
as an involuntary patient to an appropriate approved mental health service.
PART B
DETAILS OF PERSON MAKING THE REQUEST
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS) of person making the request
of
address of person making the request
signed date
Annex 8. Example: Forms for involuntary admission
and treatment (combined approach) and
appeal form, Victoria, Australia
174
PART C
TAKING PERSON TO APPROVED MENTAL HEALTH SERVICE
(TO BE COMPLETED IF NECESSARY) *
I hereby authorise
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS) of a **member of the police force, an
ambulance officer or a person authorised by the person making the request
employed by designation
to take the above named person to an appropriate approved mental health service.
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS) of person making the request
signed date
* This authorisation to take a person to an approved mental health service is only to be used
when a Request and Recommendation have been completed. In the case of an Authority to
Transport without Recommendation, schedule 4 must be used.
** Circle as necessary
175
SCHEDULE 2
Regulation 5(2)
FORM OF INVOLUNTARY ADMISSION RECOMMENDATION
Mental Health Act 1986
(Section 9)
Mental Health Regulations 1998
RECOMMENDATION FOR ADMISSION OF A PERSON AS AN INVOLUNTARY PATIENT TO
AN APPROVED MENTAL HEALTH SERVICE
TO THE ADMITTING REGISTERED MEDICAL PRACTITIONER
Please admit
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS) of person to be admitted
of
address of person to be admitted
I am a registered medical practitioner and state as follows
I have personally examined the abovenamed person on (date)
at *am/pm.
It is my opinion that:
(a) the person appears to be mentally ill (a person is mentally ill if he or she has a mental
illness, being a medical condition that is characterised by a significant disturbance of
thought, mood, perception or memory); and
(b) the person's mental illness requires immediate treatment and that treatment can be
obtained by admission to and detention in an approved mental health service; and
(c) because of the person's mental illness, the person should be admitted and detained for
treatment as an involuntary patient for his or her health or safety (whether to prevent a
deterioration in the person's physical or mental condition or otherwise) or for the protection of
members of the public; and
(d) the person has refused or is unable to consent to the necessary treatment for the mental
illness; and
(e) the person cannot receive adequate treatment for the mental illness in a manner less
restrictive of that person's freedom of decision and action.
I do not consider the person to be mentally ill by reason only of any one or more of the
exclusion criteria listed in section 8(2) of the Mental Health Act 1986.
176
I base my opinion on the following facts
FACT/S PERSONALLY OBSERVED BY ME ON EXAMINATION
FACTS COMMUNICATED TO ME BY ANOTHER PERSON
TO BE COMPLETED WHERE NO FACTS ARE PERSONALLY OBSERVED
As no facts were personally observed by me, the following facts were communicated
directly to me *in person/in writing/by telephone/by electronic communication by
Dr
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS) of other registered medical practitioner
of
doctor's address
doctors telephone number
who examined the above named person on (date)
(being a period not more than 28 days prior to today's date)
FACTS COMMUNICATED BY OTHER EXAMINING REGISTERED MEDICAL PRACTITIONER:
I consider that the above named person should be admitted to an approved mental health
service.
GIVEN NAME(S)/FAMILY NAME (BLOCK LETTERS)
of recommending registered medical practitioner
signed
SIGNATURE of recommending registered medical practitioner
Qualifications:
Address
Telephone number date
*circle as necessary
(See: http://www.dms.dpc.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf?OpenDatabase)
Excerpts from legislation of the Parliament of the State of Victoria, Australia, are reproduced
with permission of the Crown in right of the State of Victoria, Australia. The State of
Victoria accepts no responsibility for the accuracy and completeness of any legislation in
this publication.
Mental Health Act 1986
Sections 29
Mental Health Statewide
Patient Number
Notes to completing
this form
Appeals
A patient may appeal to
the Board at any time.
A community visitor or
any other person who
satisfies the Board of a
genuine concern for the
patient may make an
appeal on behalf of an
involuntary or security
patient.
Further information
To find out more about
the Board:
Ask your case
manager or another
member of the treating
team for the relevant
patients' rights
booklet.
Call the Board on the
number below.
Visit the Board's
website at
www.mhrb.vic.gov.au
Privacy Statement
The information being
collected on this form
will be used by the
Mental Health Review
Board to schedule your
appeal. The Board will
notify you and the
approved mental health
service that a hearing
has been scheduled. It
will request the service
to provide information
about you and your
treatment. The Board will
use this information to
help it decide your
appeal. The exchange of
information between the
Board and your treating
mental health service is
authorised under the
Mental Health Act
1986.
The Board will keep your
information secure and
not disclose it for any
other purpose unless
there is a legal
requirement for it to do
so.You can access
information held about
you by the Board by
contacting the Executive
Officer at the address
shown.
TO THE EXECUTIVE OFFICER MENTAL HEALTH REVIEW BOARD
________________________________________________________________________________________________________________________________________
GIVEN NAME/S FAMILY NAME (BLOCK LETTERS) of patient
________________________________________________________________________________________________________________________________________
address of patient if living in the community
I am a patient of:_________________________________________________________________________________________________________________
approved mental health service
I wish to appeal against:
(please cross Ix )
I being an involuntary inpatient.
I my community treatment order. I want to be discharged off the order.
I the conditions of my community treatment order. I want the conditions changed.
I my transfer to: ___________________________________________________________________________________________
another approved mental health service
I my restricted community treatment order. I want to be discharged off the order
(hospital order patients only).
I being a security patient.
I the refusal of the Chief Psychiatrist to grant me special leave (security patients only).
I wish to appeal because: ___________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
Signed: _____________________________________________________ Date:
TO BE COMPLETED IF A PERSON MAKES AN APPEAL ON BEHALF OF A PATIENT
I wish to appeal on behalf of the abovenamed patient.
________________________________________________________________________________________________________________________________________
GIVEN NAME/S FAMILY NAME (BLOCK LETTERS) of person making appeal
of: ____________________________________________________________________________________________________________________________________
address of person making appeal
Relationship
Signed: _____________________ to patient: ______________________ Date:
eg. community visitor, spouse, friend etc.
Fax, mail or email your appeal to:
The Executive Officer Telephone: 8601 5270
Mental Health Review Board Facsimile: 8601 5299
Level 30, 570 Bourke Street Toll Free: 1800 242 703
Melbourne 3000 Email mhrb@mhrb.vic.gov.au
You may ask a member of staff to send your appeal to the Board.
Local Hospital
Patient Number:
Family Name: ___________________________________________________________
Given Names: ___________________________________________________________
Date of Birth: _____________________________________Sex: ________________
Alias: _____________________________________________________________________
M
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DEC
2004
APPEAL TO THE MENTAL HEALTH REVIEW BOARD
White - ADMIN (send/fax copy to MHRB) Yellow - PATIENT FILE Green - PATIENT/APPLICANT
178
ADVANCE DIRECTIVES IN MENTAL HEALTH CARE AND TREATMENT
Information for mental health service users
HDI
Health and Disability Commissioner
Te Toihau Hauora, Hautanga
Example:
An advance directive refusing ECT
Manu has been sectioned under the Mental Health Act on several occasions. He was once
given a series of electroconvulsive shock treatments without his consent. He does not
remember much about the procedure, but did not like the fact that afterwards he experienced
memory blanks.
He has read a lot of material about ECT and strongly believes he does not want to take the
risk of experiencing further memory blanks. He also knows from experience that other
treatment, as well as family support, will help prevent disabling depression.
It is now three months since Manus last hospitalisation and, at his next outpatient
appointment, he sits down with his psychiatrist to discuss a personal crisis plan.
It is agreed that Manu will prepare an advance directive stating that he does not wish to
receive ECT under any circumstances.
His crisis plan covers issues such as noticing early symptoms of depression and seeking help
from the psychiatric team, as well as advice to his family about how best to
support him. Manu is hopeful that even if he is sectioned again under the Act, the wishes he
has expressed in his directive will be considered by his clinicians.
What options do I have if my advance directive is not followed?
If your advance directive about your future health care is not followed and you are not satisfied
with the clinicians explanation, you can complain to the Health and
Disability Commissioner.
What happens if I do not have an advance directive?
If you have a crisis and are considered incompetent to consent to treatment (and youre not
being sectioned under the Mental Health Act), your clinician can still decide on your treatment,
taking into account:
your best interests; and
your probable choice if you were competent to make it; or
the views of other people who are interested in your welfare.
What about nominating someone to make decisions on my behalf?
In some countries your advance directive can include a nominated person to make decisions
on your behalf. However, in New Zealand you need to appoint a person to be your Enduring
Power of Attorney in relation to your personal care and welfare, through the Protection of
Personal Property Rights Act 1988. If you wish, you can give this person the power to make
health care decisions on your behalf when you are not competent to do so yourself.
You should seek advice from a lawyer if you wish to appoint someone as your Enduring Power
of Attorney.
Annex 9. Example: New Zealand Advance
Directives for Mental Health Patients
179
What about decisions that dont relate to my health care?
There may be decisions not related to your health care that you wish to communicate in
advance. One way to do this is through crisis planning. The people working in
your mental health service should discuss your preferences with you in case you experience
another crisis. Your crisis plan can record decisions such as who
you would like to look after your children, or the names of family members you would like to
be contacted while you are in hospital.
You can also incorporate your advance directive into the crisis planning process. If your
clinician does not involve you in any crisis planning you can simply write down
your own wishes and ask for them to be put in your file.
Example:
An advance directive refusing a specific drug
When Bill was hospitalised he was given a high dose of the drug X and had a very severe
reaction to it. Bill discussed his medication with his psychiatrist and they decided that it would
be better to avoid drug X altogether, especially as a suitable alternative had been found. Bill
has family in different parts of New Zealand, and often travels around. He decided it would be
a good idea to carry with him an advance directive to safeguard against being given the drug
if he required admission to a different mental health service that did not have his records. He
also felt it would be helpful to record the names of both drug X and his current medication, as
when he is unwell he sometimes gets confused and cant remember the names.
An Enduring Power of Attorney for informing family and friends
John is a young gay man who currently has a partner and a wide circle of friends who were
really supportive when he had a mental health crisis last year. However, when his parents
came to see him during the crisis they made things worse. They disapprove of Johns lifestyle
and tried to prevent his friends from seeing him. They didnt want him to go home to his flat,
which he shares with his partner and a couple of other gay men. Although John wishes his
parents to be informed if he is hospitalised, he wants decisions about his care to be made by
his partner. For this reason, John, with help from his lawyer, has appointed his partner as an
Enduring Power of Attorney for his personal care and welfare.
What is the best way to protect my wishes and interests?
An advance directive will help ensure your wishes and interests are respected in a crisis, but
an Enduring Power of Attorney and a crisis plan will protect your wishes and interests even
more.
Do you want more control over what happens in a crisis?
If you do, an advance directive could be a good way for you to gain more control over the
treatment and care you are given in a future episode. Past episodes will have helped you
understand what treatments and care work for you and what dont. You have the right, under
the Code of Health and Disability Services Consumers Rights, to use an advance directive to
make your wishes known about the treatments and care you receive during a future episode.
What is an advance directive?
In simple terms, an advance directive is the giving or refusing of consent to treatment in the
future. It is a statement to others, usually in writing, setting out your treatment preferences if
you experience another episode of mental illness that leaves you unable to decide or
communicate your preferences at the time.
Under the New Zealand Code, advance directives relate only to the type of health care and
treatment you want. In some countries advance directives can include decisions not directly
related to your health care, but in New Zealand different processes are needed to make these
wishes known.
180
Who can make an advance directive?
The Code of Health and Disability Services Consumers Rights gives any person who is legally
competent to make a health care choice the right to make an advance directive.
What can I make an advance directive about?
Advance directives should focus on treatment and care. For example, you could state:
the treatments you do or dont want to be given when you are in a crisis, including
drugs or ECT
the places you would prefer to receive services when in crisis, such as hospital, home or
a crisis house.
Example:
An advance directive requesting a specific drug
Sally knows that when she starts to feel a certain way, its really important to begin treatment
with a low dose of drug X. During her first episodes of mental illness she became very unwell
and was hospitalised. Recently she shifted to a new city and is unsure whether her new doctor
really respects her own knowledge of her condition.
She decided to prepare an advance directive, which states that if she has another episode
she wishes to be prescribed drug X by her GP, rather than waiting for psychiatric referral.
While Sallys request will be respected by her clinicians, the drug will be provided only if
clinically appropriate at the time.
How do I go about making an advance directive?
Its not difficult to make an advance directive. You dont need a lawyer. In fact, you have the
right to make an advance directive without involving anyone else in its preparation. However,
taking the following steps will help ensure that your advance directive is respected, and the
decisions contained within it acknowledged and acted upon.
If possible, make your advance directive in writing rather than verbally. State your
preferences as clearly as you can, then sign and date it.
If you prepare your advance directive with the help of your clinician or another health
worker, he or she can verify that you are competent and sufficiently informed about your
stated preferences, and can help you clarify the type of situation you intend your
directive to cover.
If you involve your family or whanau in preparing your advance directive, or at least
inform them of it, they will be better equipped to support you and to advocate for your
wishes in a crisis.
Regularly review and update your advance directive so that it reflects any changes in
your condition or your preferences, and is viewed by clinicians as still representing your
wishes.
Keep a copy of your advance directive yourself, and give copies to your family or
support persons, and the clinicians most often involved in your care.
Will my advance directive always be followed?
No. When deciding whether or not to follow your advance directive, your clinician will consider
five questions:
Were you competent to make the decision when you made the advance directive?
Did you make the decision of your own free will?
Were you sufficiently informed to make the decision?
Did you intend your directive to apply to the present circumstances, which may be
different from those anticipated?
Is the advance directive out of date?
The Code of Health and Disability Services Consumers Rights sets out your right to be fully
informed, make an informed choice, and give informed consent. However, your advance
directive will not override the ability of your clinician to authorise compulsory treatment if you
are subject to a compulsory treatment order under the Mental Health (Compulsory
181
Assessment and Treatment) Act 1992. The Mental Health Act also directs the responsible
clinician to attempt to get your consent to treatment even though he or she may give you
treatment without your consent.
It may still be worth having an advance directive if you are subject to a compulsory treatment
order because it will give your clinician an indication of your wishes.
Example of an advance directive refusing drug X.
I do not wish to receive drug X under any circumstances. I have
discussed this decision with my psychiatrist, Dr , who has explained
my treatment options and the expected benefits, risks and side effects of drug X.
I confirm that I have made this decision of my own free will and that, unless revoked by me,
it is to apply for the next years.
Date
Signature
I confirm that is competent at the time of making this advance
directive.
Date
Clinician
Mental Health Commission:
Phone: (04) 474 8900
Fax: (04) 474 8901
Email: info@mhc.govt.nz
Website: www.mhc.govt.nz
HDI Health and Disability Commission:
Ph/TTY: (09) 373 1060
Fax: (09) 373 1061
Freephone: 0800 11 22 33
Email: hdc@hdc.org.nz
Website: www.hdc.org.nz